未出資股東對公司債權人的補充賠償責任

Secondary Liability to Corporate Creditors: Shareholders Who Do Not Contribute

2013年我國《公司法》的修訂雖然有利於投資創業，但也增加了債權人利益受到損害的風險。未出資股東對公司債權人的補充賠償責任可以較好保護債權人利益，但需要作重新解釋。未出資股東對債權人的賠償責任是補充責任的一種類型。該責任具有法定性、補充性、有限性、內部責任連帶性等特徵。“未出資或未全面履行出資義務”應理解為不僅僅包括到期的履行違約行為，也包括尚未到期的未出資行為。“不能清償”需要通過股東的先訴抗辯權來確定，只有通過仲裁或者審判，並經過強制執行仍然不能清償時股東才承擔責任。“股東未屆到期出資”應解釋為“債權人不受履行期間的約束”，股東不能主張扣除相關利息。這些解釋方法在法律解釋學上具有重要意義。

With the introduction of the Amendment of Company Law in 2013, China's entrepreneurship and investment activities will enter a new stage of development. However, the reform of corporate capital provisions has also increased the worries from corporate creditors because of the potential risks of the debt and interest damages. In fact, the secondary liability of shareholders who have failed to fulfill or to fully fulfill the obligation of capital contribution could provide corporate creditors more protections if this provision could be reinterpreted. In the views of the article, the secondary liability of shareholders is a type of statutory, supplementary, limited and internal joint liability. Under the circumstance, failing to fulfill or to fully fulfill the obligation of capital contribution not only refers to the nonperformance after the due date, but also includes these not yet due. It can be emphasized that the extent of “unable to pay off”should be determined by shareholders’ beneficium excussionis. Only when the compulsory enforcement executed by the trial or arbitration is still unable to pay off the creditors, creditors could advocate shareholders’supplementary liabilities. Meanwhile, “shareholders’ capital contribution not yet due” should be interpreted as that “creditors are not bounded by the performance periods”, and shareholders should not claim for the deduction of interests at the same time. In a word, this kind of interpretation approaches is of vital significance for legal interpretation methods and studies.