公司债权人对未出资股东寻求救济的路径

The Way for Creditors to Seek Relief from ShareholdersWho Have Not Contributed Capital

公司债权人能否直接请求未缴纳出资的股东承担责任,公司法并没有任何规定,最高人民法院在公司法的司法解释中规定了未缴纳出资的股东对公司债权人承担补充赔偿责任。在审判实践中,如何适用该项规定,尤其是阐释裁判的说理,各地法院尚未形成共识。关于未缴纳出资的股东对公司债权人承担责任的法理基础,学者们也提出了不同的学说,其中,第三人侵害债权说和担保责任在我国仅为学说,立法上没有具体化为法律规范;《民法典》上的债权人代位权不能解决未出资股东对公司债权人责任的全部问题,《公司法》第3条应成为公司债权人对尚未缴纳出资的股东承担责任的基础。“公司法司法解释(三)”第13条第2款与公司法有关公司财产权的法理相悖。股东尚未缴纳的出资是以债权形式存在的公司财产,在公司其他财产不能全部清偿公司债务时,公司债权人可以申请变更、追加未出资股东为被执行人,执行其相当于未缴纳出资部分的财产。

In the company law,there is no provision about whether the company creditor can directly request the shareholders who have not paid the capital contribution to bear the responsibility.The Supreme People s court stipulates in the interpretation of company law that the shareholders who have not paid the capital contribution should bear the supplementary compensation liability to the creditors of the company.In the trial practice,the courts have not yet reached a consensus on how to apply the provision,especially on explaining the reasoning of the judgment.As for the legal basis of the liability of the shareholders who have not paid their capital contribution to the creditors of the company,scholars also put forward different theories,among which,the theory of infringement of creditor s rights and the liability of security by the third party are only theories in China,and the legislation is not specifically changed into legal norms.The subrogation right of creditors in Civil Code cannot solve all the problems of the liability of the non funded shareholders to the creditors of the company.Article 3 of Company Law should be the basis for the creditors of the company to bear the responsibility for the shareholders who have not yet paid their capital contributions.The second paragraph of Article 13 of the interpretation of the company law(3)is contrary to the legal principle of the company law concerning the property rights of the company.The capital contribution that the shareholder has not paid is the property of the company in the form of creditor s rights.When other assets of the company cannot fully repay the company s debts,the creditors of the company may apply for change,add the shareholders who have not contributed as executors,and execute the property equivalent to the part of the unpaid capital contribution.