董事催缴出资义务的公司法解释

An Interpretation of Directors’Duty to Demand Payment from Shareholders from the Persepective of the Corporation Law

催缴出资义务属董事勤勉义务,是董事履行维护公司资本充实职责的具体组成部分。董事向股东催缴出资,系对内向公司履行董事义务,对外代公司向股东主张出资合同项下权利。公司法语境下,公司可请求股东出资的时间应既包括出资期限届满,也包括公司经营所需或不能清偿到期债务,董事因此既应核查股东出资期限是否届满,也应关注公司财务状况和经营需求,以确保及时启动催缴程序。股东出资违约时,公司有请求股东承担违约责任和解除出资合同两种救济路径,董事相应可采请求继续履行、限制表决权、股东失权等措施,具体采何种措施属商业判断事项。因董事违反义务致公司损失的机理与股东出资违约不同,应独立判断董事责任。董事责任的成立受商业判断规则限制,责任范围的确定应综合考量因果关系、董事分工、薪酬水平和责任限免条款等,应避免使董事变相承担出资担保责任,避免因责任过重而产生驱逐效应。

Corporate directors’duty to demand payment from shareholders is a specific type of duty of care,and is a part of the duty to monitor and manage the company’s financial affairs.The conduct that directors demand payment is to exercise the corporation’s rights under the contract between the corporation and its shareholders.In corporation law,the corporation shall be able to demand capital payment not only at the agreed time,but also at the time when the assets are insufficient to satisfy the claims of its creditors or the necessities of the business.Therefore,the duty of directors shall include not only timely demanding payment at the agreed time,but also paying close attention to the financial situation and business needs of corporations at all times,and timely determine whether to demand payment in advance.When a shareholder defaults,there are two paths to protect the corporation:requesting the shareholder to bear the liability for breach of contract and rescinding the capital contribution contract.The directors shall accordingly take measures such as requesting the shareholder to continue to perform,limiting the shareholder’s voting rights,and declaration of shareholder’s loss of equity.What measure to choose is a matter of business judgment.Due to the different mechanism between the shareholder’s breach of the contract and the director’s breach of its duty,the director’s liability should be judged independently,and he/she should not bear joint or supplementary liability with the subscriber.The business judgment rules limit the establishment of directors’liability.The determination of the scope of liability should comprehensively consider causal relationship,division of directors,remuneration level and liability exemption clauses,so as to avoid making directors assume the liability of capital contribution guarantee,and avoid expulsion caused by directors’excessive liability.