论董事对股东出资的催缴义务

On the Obligation of Directors to Demand Payment from Shareholders for Capital Contributions

新《公司法》引入了针对股东出资的催缴制度,解决了长期困扰理论界与实务界的缴资难题,可谓是立法的一大进步。但催缴义务的法律性质、催缴的前提条件、催缴义务的履行、违反催缴义务的认定标准及其法律责任等问题仍有待解释论层面的进一步阐释。董事对股东出资的催缴义务首先应当是信义义务,其次应当属于董事对公司所负的勤勉义务。催缴的前提是需要对股东出资情况进行核查,需要核查的情形不仅包括正常情况下的届期缴资,还应包括出资加速到期、五年认缴期限届至等导致股东提前缴资的情形,因而核查内容应包括股东认缴与实缴、公司是否不能清偿债务等情况。基于对新《公司法》第51条、第52条的解释,催缴义务在实践中可以由董事履行,也可以由任何能代表公司机关的主体履行。当董事履行催缴义务时,基于催缴义务的勤勉义务属性,董事对股东出资的催缴宽限期可以依据商业判断进行自由裁量。董事违反催缴义务的认定应当遵循“严格客观标准”,“给公司造成损失”应当理解为公司实际利益的消极减损,董事仅应当向公司承担法律责任,这一责任不等同于代替股东履行出资义务的法律责任。

The new Company Law has introduced a system for demanding shareholders to pay their subscribed capital and a system for shareholders to lose their rights,which has solved the long-standing problem of capital contribution in both theoretical and practical fields,and can be regarded as a significant progress in legislation.However,the legal nature of the obligation to demand payment,the prerequisites for the obligation to demand payment,the performance of the obligation to demand payment,the determination of violations of the obligation to demand payment,and their legal responsibilities still need further explanation.The obligation of directors to demand payment from shareholders for capital contributions should first be a fiduciary obligation,and secondly,it should be a diligent obligation of directors towards the company.The prerequisite for demanding payment is to verify the capital contribution of shareholders.The scope of verification should not only include the overdue payment under normal circumstances,but also include the early payment of capital by shareholders caused by accelerated maturity of capital contributions and the five-year subscription system.Therefore,the verification content includes the subscription and actual payment status of shareholders,whether the company is unable to repay debts,etc.Based on the interpretation of Articles 51 and 52 of the new Company Law,the obligation to demand payment can be fulfilled by directors in practice,or by any entity that can represent the company’s organs.When a director fulfills the obligation to demand payment,due to the diligent nature of the obligation to demand payment,the director’s call for shareholder contributions can be freely exercised based on commercial judgment during the grace period.The determination of a director’s violation of the obligation to demand payment should follow“strict objective standards”,and“causing losses to the company”should be understood as a negative reduction in the actual interests of the company.Directors should bear legal responsibility to the company,and only to the company.This responsibility is not equivalent to the legal responsibility of replacing shareholders in fulfilling their capital contribution obligations.