新公司法下的未届期股权转让出资责任
学术
2024-08-04 18:36
山东
新《公司法》第88条第1款：“股东转让已认缴出资但未届出资期限的股权的，由受让人承担缴纳该出资的义务；受让人未按期足额缴纳出资的，转让人对受让人未按期缴纳的出资承担补充责任。”根据上述规定，未届期股权转让后，受让人承担出资义务，受让人没有承担的，转让人对出资义务承担补充责任。Article 88 of the new "Company Law" responds to and stipulates the issue of capital contribution liability after the transfer of unexpired equity that has long been controversial in practice. It clarifies that after the transfer of unexpired equity, the issue of capital contribution should first be borne by the transferee. assume the responsibility for capital contribution, and then the transferor shall bear additional responsibilities. On the other hand, the provisions of Article 18 of the "Company Law Interpretation III" on the issue of capital contribution liability after the transfer of defective equity have been continued and further improved. At this point, there are relatively comprehensive regulations on the investment issues after the transfer of uncompleted investment equity that are common in practice. Generally speaking, Article 88 of the new "Company Law" defends the principle of corporate capital maintenance, protects creditors, and puts a "tightening curse" on the capital contribution responsibilities of equity transferors and transferees, which reflects the legislators' efforts. Value balance promotes the further construction and improvement of a social system of honesty and credit, and the goal of legal creditor protection is superior to the exit freedom and term interests of shareholders who have not fulfilled their obligations.In an equity transfer, depending on whether the transferor of the target equity has fulfilled its capital contribution obligations, the type of the transferred target equity can be divided into equity that has fully fulfilled its capital contribution obligations and equity that has not fulfilled its capital contribution obligations, and the latter is divided into equity that has defective capital contributions. (hereinafter referred to as "defective equity"), equity with unexpired capital contribution period (hereinafter referred to as "unexpired equity"). Unexpired equity transfer means that when the equity is transferred, the subscription period for the equity has not yet expired. Defective equity transfer means that when the equity is transferred, the subscription period for the equity has expired, but the transferor has not fully performed its capital contribution obligations. The subdivision includes all overdue non-performance, overdue partial non-performance and defective performance.The issue of capital contribution after the transfer of unexpired equity has not been explicitly stipulated before. It is a new provision made in Article 88, paragraph 1, of the new "Company Law". The practice is still being explored and applied, and there is still controversy. The issue of capital contribution after the transfer of defective equity is stipulated in Article 18 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)" (hereinafter referred to as "Interpretation III of the Company Law"). Paragraph 2 of Article 88 of the new "Company Law" generally follows the provisions of Article 18 of the "Interpretation III of the Company Law". Since it has been explicitly stipulated for a long time, there is relatively little controversy.Paragraph 1 of Article 88 of the New Company Law: “If a shareholder transfers equity for which he has subscribed for capital contribution but has not yet expired, the transferee shall bear the obligation to pay the capital contribution; if the transferee fails to pay the capital contribution in full on time, The transferor shall bear additional liability for the transferee’s failure to pay the capital on time.”According to the above provisions, after the unexpired equity is transferred, the transferee shall bear the capital contribution obligation. If the transferee fails to bear it, the transferor shall bear supplementary liability for the capital contribution obligation.
