公司資本繳納模式的立法選擇

A Comparative Study of Corporate Capital Payment Mode and Its Choice in China

公司資本繳納模式大致可分為全部實繳模式、限制實繳模式與催告實繳模式三類，三者均圍繞實繳展開，其對股東繳資合約自由的限制程度從嚴到松依次遞減。相較而言，限制實繳模式並非全部實繳模式和催告實繳模式的折中路徑，一般只適用於存在最低資本的制度體系；從制度效果及適用廣度來看，全部實繳制在諸多場景下優於催告實繳制。我國獨特的全面認繳制因不強調實繳而不同於三類主要的繳資模式，其制度邏輯存在不足，新《公司法》對其進行針對性改革的做法值得肯定。然而，新法採取了股份公司全部實繳、有限公司限期實繳的雙軌路徑，這對解決我國股東出資問題效果有限。從信用基礎、規則體系、司法現狀與制度需求等多個視角來看，我國更適合推行全部實繳制，這不僅可化解我國當下資本繳納所面臨的系列困境，還可增強我國公司資本規則體系的制度韌性。不過，考慮到全面認繳與全部實繳之間的制度差異，新法規定的雙軌制仍是邁向全部實繳制的有益過渡。

The capital payment models of companies in mainstream legal domains can generally be divided into three types: the fully paid-up model, the restricted paid-up model, and the notice-required paid-up model. All three revolve around the concept of actual capital payment and essentially represent three levels of restrictions on the contractual freedom of shareholders to contribute capital, ranging from strict to lenient. In comparison, the restricted paid-up model is challenging to strike a balance between the fully paid-up and notice-required paid-up models and is generally only applicable in systems with minimal capital requirements. From the perspective of institutional effectiveness and applicability, the fully paid-up system is superior to the notice-required paid-up system in many scenarios, as well as to the unique subscription system in China. The subscription system differs from the three main capital contribution models as it does not emphasize actual payment, and the new company law􀆶s decision to abolish it is commendable. However, the new law adopts a dual-track approach for joint-stock companies (requiring full payment) and limited liability companies (allowing deferred payment). This approach has limited effectiveness in addressing practical issues arising from shareholder contributions in China. Considering various perspectives such as credit foundation, regulatory framework, judicial status, and institutional requirements, a actual payment system is more suitable for China. This not only helps extricate the country from the current quagmire of capital payment issues but also injects greater institutional resilience into the capital rules system. Nevertheless, given the institutional gap between subscription and full payment, the dual-track system introduced by the new law remains a beneficial transition toward a fully paid-up system.