合同视角下未到期出资转让的法律分析

Legal Analysis of Undue Investment Transfer from the Perspective of Contract

2013年公司注册资本制度改革后,因为配套制度未紧密跟上,存在一些对公司和债权人利益保护不完善的问题,如股东在认缴的出资未到期限时进行股权转让就可能带来较大潜在风险。从合同分析视角来看,股东转让未到期出资是对公司所负债务的转让,应经过作为债权人的公司同意方可,而该同意的意思表示应由公司董事代表公司作出。董事基于对公司的忠实和勤勉义务,如认为该转让会对公司利益带来不利影响时,应采取催缴股东提前完成出资的措施,如董事未履行应尽的催缴义务,应对公司债权人由此受到的损失承担补充赔偿责任。

After the corporate registered capital system reform in 2013,there were some problems in protecting the interests of the company and creditors because the supporting system has not closely followed.For example,the transfer of shareholders'equity may bring great potential risks when the subscribed capital has not expired From the perspective of contract analysis,the transfer of unexpired capital contributions by shareholders includes the transfer of debts to the company,which should be subject to the consent of the company as a creditor,while the expression of the consent should be made by the director on behalf of the company.Based on his duty of loyalty and diligence to the company,the director can take measures to urge shareholders to complete their capital contributions in advance to protect the company's reasonable expected interests if he thinks that the transfer may bring adverse influence on the company's interests.If a director fails to fulfill his due obligation to expedite payment,he shall be liable for supplementary compensation for the consequent losses suffered by the creditors of the company.