股东的瑕疵出资责任——评新《公司法》第28、31、94条

Shareholder's Defect Investment Responsibility──On the Clauses 28, 31 and 94 of New Company Law

新《公司法》第28、31、94条对股东的瑕疵出资责任进行了规定,但是当有限责任公司股东出资不实时,该股东是否要向其他股东承担违约责任?当有限责任公司股东未履行货币财产出资义务时,其他股东是否要承担连带责任?新《公司法》对此未作明示规定。可以运用法律解释的方法对这两个问题进行解说,并从合伙协议和共同欺诈的角度论证了上述解说的正当性。

The clauses 28, 31 and 94 of the New Company Law put forward regulations on shareholder＇s defect investment responsibility. However, should the shareholders take the responsibility of breaching faith for other shareholders when the shareholder＇s investment of Limited Liability Company is far from the truth？ Should other shareholders take the related responsibility when the shareholders of the Limited Liability Company don＇t fulfill their responsibility of investment of currency property？ New company law has no obvious regulations about the above two problems. We can explain the two problems with the method of lawful explanation and states the justifiability of the above explanation from the aspect of cooperative agreement and common fraud.