有限責任公司全面認繳制該何去何從？——兼評《公司法(修訂草案三審稿)》第47條

The Future of the Comprehensive Subscription System for Limited Liability Companies: Comment on Article 47 of the Company Law (Third Review of Revised Draft)

《公司法（修訂草案三審稿）》中增加了有限責任公司股東認繳的出資需在五年內繳足的規定，引發了理論界和實務界對全面認繳制的又一次討論熱潮。回顧過往商業實踐可以發現，全面認繳制在發揮其鼓勵投資積極作用的同時，也帶來了股東濫用期限利益逃避出資義務的嚴重問題，由此衍生出大量股東出資糾紛。股東出資義務兼具法定性和約定性雙重屬性，立法設計中需厘清資本認繳制的邊界，劃定股東期限利益的範圍。《公司法（修訂草案三審稿）》將限制認繳期限和股東出資義務加速到期制度作為認繳制的配套約束機制，雖然二者都具備維護資本充實和保護債權人利益的功能，但各自也具有不可替代的制度價值。通過對認繳制的再認識對之進行科學評價無疑具備重要的現實意義。

The Company Law (Third Review of Revised draft) has added the provision that the shareholders’capital contribution of limited liability companies should be paid in full within five years, which has triggered another upsurge of discussion on the comprehensive subscription system in the theoretical and practical circles. Reviewing the past business practice, it can be found that when the comprehensive subscription system plays a positive role in encouraging investment, it also has a serious problem that shareholders abuse the term benefits to evade the investment obligation, and a large number of shareholder investment disputes have been derived from it. The shareholder’s contribution obligation has both legal and contractual characteristics. The legislative design needs to define the boundary of the capital subscription system and delimit the scope of the shareholder’s term interests. In this revision, the system of limiting the subscription period and accelerating the maturity is taken as the supporting constraint mechanism of the subscription system. Although both of them have the functions of maintaining capital enrichment and protecting the interests of creditors, they also have irreplaceable institutional value. This paper will evaluate it through the re-understanding of the subscription system.