股权受让人出资责任的规则建构分析

在实行注册资本认缴制的有限责任公司股权转让情形下,为兼顾股权转让的资源配置效益与资本充实的信用保障效益,应建构股权受让人出资责任规则。此次公司法修订在司法经验基础上,对该项规则进行了调整充实,但仍有结构性缺陷和应用性障碍。应将认缴制下的出资义务设定为股权负担,由此建构以“物的关系”为表征的股权受让人出资责任规则,并将出资义务履行情形分为三类,分别设置转让人与受让人之间的出资责任:未届缴资期限而转让股权,由股权受让人届期承担出资义务,转让人不再承担出资责任;未按期足额缴资而转让股权,由股权受让人承担出资责任,构成出资违约的转让人承担补充责任;非货币出资财产实际价额显著低于认缴额而转让股权,股权受让人不承担出资责任,由该项出资的转让人承担差额补足责任。

In the case of the share transfer in a limited liability company with the system of subscription of registered capital,rules on the obligation of the transferee of share should be constructed in order to balance the effectiveness of resource allocation of share transfer with the effectiveness of credit protection of capital enrichment.These rules have been adjusted and enriched by the Draft Bill to Revise the Company Law on the basis of judicial experience,but they still have structural defects and application obstacles:they cannot effectively solve the problem of attribution of obligation for capital contribution in the case of multiple transfers of the subject share.Nor can they reasonably solve the long-term contingent liability burden caused by the non-application of the limitation of actions to the obligation for capital contribution,or strike a reasonable balance between the interests of various parties involved in share transactions under the subscribed capital system.The obligation for capital contribution under the subscribed capital system should be set as a burden on share so as to construct rules of obligation for share transferee’s capital contribution characterized by the“relationship in rem”.Only by setting the obligation to contribute as a burden on share,so that the obligation to contribute must be transferred with the share,can reasonable rules of obligation for the transferee of share be constructed,and the efficiency and effectiveness of the application of these rules be ensured.The performance of the contribution obligation should be divided into three categories,within each of which the liability for the contribution of capital between the transferor and the transferee should be set.(1)In the event that a shareholder transfers his or her share when the capital contribution period has not expired,the transferee of the share shall assume the capital contribution obligation upon the expiry of the capital contribution period and the transferor shall not be liable for the capital contribution.(2)Where a shareholder transfers his or her share upon the expiry of the capital contribution period but has not paid the capital in full,the transferee of the share shall be liable for the capital contribution and the transferor of the shareholding shall be supplementarily liable for any overdue payment;where the company has made a call on the transferor,the transfer of his or her shareholding shall be subject to the consent of the company.(3)If a shareholder transfers his or her share when the actual value of the non-monetary capital contribution is significantly lower than the amount of the subscription,the transferor of the share shall continue to be liable for the difference in the capital contribution,and other shareholders at the time the capital contribution is accepted by the company shall be liable for the contribution of capital in full,and the transferee of the share shall not be liable for the capital contribution.If the share transferee and the transferor are complicit in the false capital contribution,they shall be jointly liable for the difference in the capital contribution.