出资未届期之股权转让后出资义务的承担

Assumption of Capital Contribution Obligations after the Transfer of Equity That Has Not Expired

现行法对出资未届期的股权转让后出资义务的承担问题并未作出规定,处于立法空白状态。理论界和实务界存在转让人责任说、受让人责任说、连带责任说、区分责任说等多种观点,该问题的争议实质是股东利益与公司、债权人利益如何平衡。笔者认为应采受让人责任说,出资义务是股东对公司的一项债务,可随着股权转让而发生概括转移,其中债务承担的“同意”要件应是公司召开股东(大)会过半数决议通过。而采受让人责任说后,为防止股东通过转让出资未届期股权恶意逃避出资义务,应增设程序性规定及时通知公司债权人,以保护债权人的利益。

The current law does not stipulate the assumption of capital contribution obligations after the equity transfer of the unexpired capital contribution, and is in a state of legislative gap. In theoretical and practical circles, there are various viewpoints, such as the theory of assignor liability, the theory of assignee liability, the theory of joint and several liability, and the theory of differentiated liability, and the essence of the dispute on this issue is how to balance the interests of shareholders with the interests of the company and creditors. The author agrees with the theory of assignee liability. The capital contribution obligation is a debt of the shareholders to the company, which can be transferred in general with the transfer of equity, and the “consent” requirement for the assumption of debts should be passed by a majority resolution of the company’s shareholders’ (general) meeting. In order to prevent shareholders from maliciously evading their capital contribution obligations through the transfer of unexpired equity contributions, procedural provisions should be added to notify the company’s creditors in a timely manner to protect the interests of creditors.