新《公司法》下失权股东的责任承担与救济

Equities-Forfeit Shareholders Liability and Its Relief in Terms of the New Company Law

新《公司法》第52条建立了股东失权制度,取代了司法解释规定的股东除名制度。股东失权后其对公司债权人的义务和责任并未被免除。股东承担责任的理论基础应为债权人的代位权。股权被处理前,公司债权人仍可向失权股东主张其在未出资本息范围内就公司债务不能清偿的部分承担补充赔偿责任。失权股东向债权人承担责任的,原则上应允许失权股东复权。当公司和失权股东无法就复权达成一致时,应由公司享有最终决定权。无法复权的,失权股东可向公司追偿。股权被处理后,仅在股权被依法转让且新股东未实际缴纳出资的场合下,债权人才能要求失权股东承担补充清偿责任。即使股东承担补充清偿责任,此时也已无法复权,但有权向新股东追偿。

The new Company Law prescribes the equities-forfeit of shareholder in the Article 52,replacing the expulsion rule prescribed in the Judicial Interpretation.After equities are forfeited,the shareholders duties and liabilities to company s creditors still exist.The theoretical base of the shareholders liability is the creditors subrogation right.Before the equities are disposed,the company s creditor can claim the equities-forfeit shareholders to bear additional liabilities to the extent of principle and interest not contributed by the shareholders,for compensating the debts of the company that are unable to be repaid.If the shareholders bear their liabilities to the company s creditors,they should generally be allowed to restore the equities in some specific conditions.When the company and the equities-forfeiting shareholders cannot agree on whether the shareholders can restore their shares,the company should have the right of final decision.And if restoration cannot be realized,the shareholders can propose recovery from the company.If the equities have been disposed,the company s creditor can claim the shareholders liability only if the forfeit-equities have been transferred and at the same time the transferees has not donated the shares,and after their bearing liability,the shareholders can propose recovery from the transferees.