論董事對股東出資的催繳義務

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

新《公司法》引入了針對股東出資的催繳制度，解決了長期困擾理論界與實務界的繳資難題，可謂是立法的一大進步。但催繳義務的法律性質、催繳的前提條件、催繳義務的履行、違反催繳義務的認定標準及其法律責任等問題仍有待解釋論層面的進一步闡釋。董事對股東出資的催繳義務首先應當是信義義務，其次應當屬董事對公司所負的勤勉義務。催繳的前提是需要對股東出資情況進行核查，需要核查的情形不僅包括正常情況下的屆期繳資，還應包括出資加速到期、五年認繳期限屆至等導致股東提前繳資的情形，因而核查內容應包括股東認繳與實繳、公司是否不能清償債務等情況。基於對新《公司法》第51條、第52條的解釋，催繳義務在實踐中可以由董事履行，也可以由任何能代表公司機關的主體履行。當董事履行催繳義務時，基於催繳義務的勤勉義務屬性，董事對股東出資的催繳寬限期可以依據商業判斷進行自由裁量。董事違反催繳義務的認定應當遵循“嚴格客觀標準”，“給公司造成損失”應當理解為公司實際利益的消極減損，董事僅應當向公司承擔法律責任，這一責任不等同于代替股東履行出資義務的法律責任。

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.