有限责任公司中现物出资不实的法律责任探析——关于《公司法》第28条规定的解读

Reflection on the Legal Liabilities of Shareholders of the Limited Liability Company for Overrated Contribution in Kind:An Interpretation of the Article 28 of the Company Law

我国《公司法》第28条规定的有限责任公司股东现物出资不实的民事法律责任,实际上包括出资不实股东的补缴差额责任,以及其他股东的连带差额填补责任。其立法目的在于防止公司设立过滥及虚假出资。然而,由于该责任设计本身存在的瑕疵,该条规定实际上非但不能满足立法目的的需要,而且给善意当事人带来损害。因此,未来《公司法》修订时应当根据资本充实原则及过失责任原则对之进行修正。

The legal liabilities of shareholders of the limited Lability company for overrated contribution in kind that are stipulated in Article 28 of the Company Law include the liability to make up the difference of value born by the shareholder（s） who contributed such overrated investment and the joint liability to complement such difference born by other shareholder（s） at the time of the establishment of the company. The legislative intention of the article is to prevent the abusive estabhshment of company and false capital contribution. Because of some designing flaw in this kind of liability, Article 28 is not able to really meet its legislative intention and conversely makes some damages to related parties in good faith. For this reason, it is necessary to revise this article according to the doctrine of maintaining of capital and the principle of liability for fault at the time of amending the Company Law in the future.