未出资股东对公司债权人的补充赔偿责任

Secondary Liability to Corporate Creditors:Shareholders Who Do Not Contribute

2013年我国《公司法》的修订虽然有利于投资创业,但也增加了债权人利益受到损害的风险。未出资股东对公司债权人的补充赔偿责任可以较好保护债权人利益,但需要作重新解释。未出资股东对债权人的赔偿责任是补充责任的一种类型。该责任具有法定性、补充性、有限性、内部责任连带性等特征。"未出资或未全面履行出资义务"应理解为不仅仅包括到期的履行违约行为,也包括尚未到期的未出资行为。"不能清偿"需要通过股东的先诉抗辩权来确定,只有通过仲裁或者审判,并经过强制执行仍然不能清偿时股东才承担责任。"股东未届到期出资"应解释为"债权人不受履行期间的约束",股东不能主张扣除相关利息。这些解释方法在法律解释学上具有重要意义。

With the introduction of the Amendment of Company Law in 2013, China＇s entrepreneur- ship and investment activities will enter a new stage of development. However, the reform of corporate capital provisions has also increased the worries from corporate creditors because of the potential risks of the debt and interest damages. In fact, the secondary liability of shareholders who have failed to fulfill or to fully fulfill the obligation of capital contribution could provide corporate creditors more protections if this provision could be reinterpreted. In the views of the article, the secondary liability of shareholders is a type of statutory, supplementary, limited and internal joint liability. Under the circumstance, failing to fulfill or to fully fulfill the obligation of capital contribution not only refers to the nonperformance after the due date, but also includes these not yet due. It can be emphasized that the extent of ＂unable to pay off＂ should be determined by shareholders＇ beneficium excussionis. Only when the compulsory enforce- ment executed by the trial or arbitration is still unable to pay off the creditors, creditors could advocate shareholders＇ supplementary liabilities. Meanwhile, ＂shareholders＇ capital contribution not yet due＂ should be interpreted as that ＂creditors are not bounded by the performance periods＂, and shareholders should not claim for the deduction of interests at the same time. In a word, this kind of interpretation ap- proaches is of vital significance for legal interpretation methods and studies.