摘要：2005年修订的《公司法》第31条规定：“有限责任公司成立后，作为发现设立公司出资的非货币财产的实际价额显著低于公司章程所定价额的应当由交付该出资的股东补足其差额；公司设立时的其他股东承担连带责任。”从该条规定可知，差额补缴责任的主体为公司成立后发现的特定的瑕疵出资人。
Abstract: The 31 Article of the Company Law of the People’s Republic of China amended in 2005 provides that, “After the establishment of a limited liability company, if the actual value of the capital contributions in nonmonetary properties is found to be apparently lower than that provided for in the articles of association of the company, the balance shall be supplemented by Shareholder who has offered them, and the other Shareholder of the company who have established the company shall bear joint liabilities.” The article tells that the liability subject of supplementing the balance is the specific Shareholder of the defective capital contribution and is found after the establishment of the company.
关键词：股权；瑕疵出资；差额补缴责任
Keywords: stock rights; Shareholder’ defective capital contribution; Shareholder’ responsibility for contribution of balance
I. The liability body after the transfer of defective stock ownership
1. The transferor Shareholder takes full liability. This view holds that Shareholder who has made defective capital contribution should be fully liable thereon. An investor should not be exempted from the liability for contribution of balance after a stock right transfer. In accordance with the principle of taking one’s own responsibility as stipulated in Chinese civil laws, although a transferor Shareholder are no longer Shareholder of the Corporation after transfer of shares, the investment duty given upon the founding of the Corporation is legal obligation and should not be exempted upon transfer of shares.
2. The transferee Shareholder takes full liability. This view holds that a transferee of defective shares should be fully liable thereon, without regard to whether there is fraudulence involved in the defective share transfer. The subject matter of a stock right transfer contract is stock rights. After transfer of shares, a transferee Shareholder replaces the transferor Shareholder and becomes Shareholder of the Corporation. Therefore, the civil liability of defective capital contribution should be fall upon the transferee Shareholder who has become Shareholder of the Corporation. The transferor Shareholder is exempted from any liability upon losing Shareholder qualification.
3. The transferor Shareholder and the transferee Shareholder have joint liability. This view holds that if the transferee’s acquisition happens under the knowledge that the involved shares are defective, or without such knowledge but without consideration payment, then the defective share transfer contract is effective. Thus, the transf-
eror and the transferee should be jointly liable for payment thereof to relevant privies on the merit of the defective capital contribution. If the transferee is defrauded by the transferor, the transferee could file a lawsuit against the transferor for the revoking or modifying the defective share transfer contract but could not confront the unwitting creditors of the Corporation and should, together with the Corporation and its Shareholder, be liable for payment to the creditors thereof according to the defective capital contribution. After the transferee’s payment to the creditors of the Corporation, the transferee has the right to demand recovery from Shareholder or sue for the revoking or modifying of the contract.
4. The subject of liability should be decided according to that whether the transferee is a bona fide transferee or not. This view holds that if the transferee, when knowing or supposed to know
that the share is defective, acquires the share, then the transferee should held liable for the defective capital contribution and Shareholder should be required to pay off the shortfalls. As to whether there will be recovery pursuit between the transferee and the transferor, it should be decided in accordance to the agreement about the stock price and so on contained in the defective share transfer contract. If the transferee is tricked into acquiring the defective share, then the transferee, on the merits of the case, could sue for revoking, modifying or nullifying of the contract.
II. The civil liability of Shareholder for defective capital contribution after transferring stock rights
The author believes that the civil liability of Shareholder for defective capital contribution should not be exempted even after transferring stock rights.
1. In the Company Law of the People’s Republic of China, it is not clearly stipulated that Shareholder should not be held liable for defective capital contribution after transferring stock rights, but it is implied that Shareholder should be held liable. The Article 28 of the old Company Law of the People’s Republic of China provides that when the capital contribution is made in non-currency properties and is found to be defective, Shareholder should be liable for making up the arrears, but it doesn’t provide that when the capital contribution is made in currency, Shareholder should be liable for defective capital contribution such as false capital contribution, withdrawing capital contribution, etc. However, abiding by the principle of good faith, the legislation intent of both the old and the new Company Law in terms of corporate capital system and the Articles 208, 209 of the old Company Law, if the capital contribution made in currency is defective, Shareholder should be liable thereon. The second paragraph of Article 28 of Company Law says, “Shareholders failing to make the capital contributions in according with the preceding paragraph shall be liable for breach of contract towards the shareholders who have made their capital contributions in full and on time.” What needs noting here is that the abovementioned laws do not prescribe that Shareholder can be allowed not to make up the arrears after the transfer of stock rights. In other words, no matter there is a transfer of share ownership or not, Shareholder should be responsible for making full capital contribution, which means that the liability for defective capital contribution is implied.
2. According to the juridical practice in China, the liability of Shareholder for defective capital contribution should not be exempted upon transferring stock rights. The first paragraph of Article 10 of Provisions of the Supreme People’s Court on Various Issues Concerning the Trial of Cases involving Disputes Relating to Companies(1)(Draft for Comments) prescribes,“When Corporation fails to pay off debts upon the request of creditors, creditors may file suits against both shareholders who made deficit capital contribution and other shareholders who contributed for the foundation of Corporation and request compensation according to the given proportion of the deficit capital contribution and interests. Other shareholders, who contributed for the foundation of Corporation, after assuming liability, may ask shareholders who made deficit capital contribution to pay off the shortfalls. ”
The first and the second paragraphs of Article 28 prescribe, “If a limited liability company’s shareholders transfer stock rights before making full capital contribution and the company and other shareholders request the transferors to pay off the shortfalls using the transfer price, then the people’s court should uphold such requests. If the transfer price is insufficient to pay off the shortfalls and the transferors do not make up the deficiency, then the company or other shareholders or creditors, pursuant to Articles 9 and 10, request the transferors to make up the insufficient part or to take on the company’s debt liability according to the given proportion of the deficit capital contribution and interests, then the people’s court should uphold such requests. ”The second paragraph of Article 4 of Opinions of High People’s Court of Shanghai Municipality on Several Issues Concerning Corporate Litigation Cases (2) prescribes, “If shareholders of a limited liability company transfer stock rights before making full capital contribution and the company and other shareholders request the transferors to pay off the shortfalls using the transfer price, then the people’s court should uphold such requests, and the transferees may be included as the third person in the given litigation case.” Although the abovementioned provisions have not been effected or only have the reference value of jurisprudence, they represent the common juridical practice. It is obvious that the judicial value orientation is that shareholders who make defective capital contribution should not be exempted from the civil liability thereon after transferring stock rights.
3. According to instances of legislation in other states, most states provide that shareholders who make defective capital contribution should not be exempted from the civil liability thereon after transferring stock rights. The first paragraph of Article 282 of The French Commercial Code stipulates, “shareholders who haven’t paid for share capital, subsequent transferees and subscribers of shares are jointly liable for the unpaid share capital. The company may take judicial proceedings against them before or after selling or at the same time so as to acquire the unpaid share capital or compensation for the committed cost.” The second paragraph provides, “the ones who have paid the indemnification to the company may ask subsequent stockholders to cover the expenditure in full. And in the end the debt should be paid by ultimate stockholders.” Subparagraph 3 of Article 16 of German Limited Liability Company Act provides, “the purchaser and the transferor should be jointly liable if the shares are not paid upon declaration.”
4. The transferee’s stock rights acquired through transfer is subject to that of the transferor and the transferor is not allowed to transfer rights and interests more than it owns. Defective capital contribution will inevitably lead to defective stock rights. It means that when shareholders do not contribute capital or full capital upon the founda-
tion of the company or withdraw capital contribution after the foundation of the company which result in defective capital contribution, if the transferee with or without the knowledge thereof does not take the initiative to cancel the stock rights transfer contract, the transferee and the transferor should be jointly liable for the defective capital contribution to the company and the creditors according to the given proportion thereof.
To sum up, if the liability for defective capital contribution is allowed to be exempted upon stock rights transfer, then it is equivalent to “opening a door”for shareholders of defective capital contribution to escape unnoticed. It will humor and encourage shareholders not to fulfill contribution obligations. Evidently, it is against the legislation intent of safeguarding market fair competition and the principle of good faith.
(Author: from East China University of Politics and Law, Shanghai, 200042)