股东债权出资的风险责任承担及救济

Risk Liability and Relief of Shareholders’ Debt Contribution

摘要: 我国新修订的《公司法》明确允许以债权出资，结束了长期以来理论与实践中的争议。然而，债权由于其自身特性导致存在瑕疵债权、虚假债权的风险，出资过程中及出资后亦有债权实际价值判断困难、债权实现预期不明等诸多风险。当前理论界与实务界对风险责任的承担未有统一定论。为此，出资股东应从自检债权、对公司尽到告知义务、代公司行使催缴权利等方面规避出资风险；而公司则需要对债权本身、流转过程及出资股东三方面进行合理审查，防止潜在的出资风险。

Abstract: The newly revised Company Law of our country clearly allows for the use of debt as capital contribution, ending the long-standing controversy in theory and practice. However, due to its inherent characteristics, there is a risk of flawed and false claims, and there are also many risks such as difficulty in determining the actual value of claims and unclear expectations for their realization during and after the investment process. There is currently no unified consensus between the theoretical and practical circles on the assumption of risk responsibility. To this end, shareholders should avoid investment risks by self-checking their claims, fulfilling their obligation to inform the company, and exercising their call rights on behalf of the company. The company, on the other hand, needs to conduct a reasonable review of the debt itself, the circulation process, and the contributing shareholders to prevent potential investment risks.