未缴纳出资股权转让的责任规则构建

Responsibility for the Transferred Equity of Unpaid Contributions

股权转让包含股权作为财产权属的变更和受让人股东资格的取得。股权转让产生权利义务概括转移至受让人的法律效果。对于未缴纳出资股权,记载于股东名册的受让人是第一顺位的出资义务人。基于股东有限责任和出资义务的法定性,由转让人对未届出资期的股权承担补充责任,有利于通过市场机制抑制出资不足的风险,降低司法成本。对于已届出资期的,转让人应当与受让人承担连带责任。经相关利益主体同意不能实现资本充实目的,且成本高、效率低。根据转让人主观状态来确定责任,举证难、司法成本高、易被规避。转让已届出资期股权的,公司要求转让人承担连带责任不以对受让人失权为前提。转让未届出资期股权的,符合股东出资加速到期条件的,公司应当首先要求受让人承担责任,仅在受让人不能承担责任的,才能依次要求转让人承担补充责任。

There is a great controversy in the theoretical and practical circles about the responsibility of the transferor and transferee for unpaid equity,especially for unpaid equity that has not expired.Equity transfer results in the change of ownership and the acquisition of shareholder qualification.As for unpaid equity,based on the presumption of shareholder qualification in the shareholder register,making the transferee the bearer of the primary responsibility for contribution is conducive to the establishment of a recourse chain for contribution.As equity transfer,which is a transaction under commercial organization law,involves the interests of the company and creditors,it cannot be simply governed by the general rules of the contract law.The rule of limited liability may induce shareholders to use equity transfer to evade their responsibility for capital contribution,thereby transferring business risk and harming corporate interests and the interests of creditors.The obligation of capital contribution is both statutory and mandatory under commercial organization law.Making the transferor the bearer of supplementary responsibility for the equity that has not due helps to reduce the risk of insufficient capital contribution and judicial costs through the market mechanism.The transferor's supplementary responsibility is a legal responsibility with the sequential nature.Whether the transferor can recover after bearing supplementary responsibility should be determined according to the agreement between the transferor and the transferee.If there is no such agreement,the transferor cannot recover.As for the transfer of unpaid contributions,some view equity transfer as a transfer of debt to the company,which requires the consent of relevant stakeholders such as the company and directors.This method can't achieve the effect of debt transfer with the consent of creditors and increases the difficulty of equity transfer because of its high cost and low efficiency.In judicial practice,many verdicts determine the responsibility of the transferor based on its subjective state,such as transferring equity to a transferee with no ability to contribute when the company is insolvent.A subjective state is difficult to prove and easy to evade,leading to high judicial costs.The Company Law provides for the system of accelerated maturity of shareholders'capital contributions,when the conditions of urgent due of undue shareholder contributions are met,the transferee should be required to bear responsibility first.Only when the transferee is unable to bear responsibility can the transferor be required to bear supplementary responsibilities in sequence.The transferor shall bear joint and several liability with the transferee for transferred equity that has reached the due date for capital contribution.The transferor's joint and several liability is not conditioned on the loss of right of the transferee.If the company fails to make up for the insufficient capital contribution after the loss of right of the transferee,the transferor should bear the joint and several liability.