股东出资加速到期的理解与适用

Interpretation and Application of Shareholder Capital Contribution Acceleration

摘要: 股东出资加速到期可以分为破产清算和常态加速到期两种。常态下股东出资加速到期指公司在正常存续期间要求股东提前履行出资义务。《中华人民共和国公司法》(后文简称《公司法》)第五十四条将以往股东出资加速到期的适用情形从破产清算扩展至公司虽然不具备破产和清算原因但不能清偿到期债务，赋予公司债权人和公司双重请求权主体资格，在注册资本认缴制下，股东的期限利益以公司能够清偿到期债务为限。当公司能够清偿债务时，股东可主张期限利益并以此对抗公司债权人；若公司不能清偿债务，则股东丧失期限利益，不得以此对抗公司债权人。同时，认定“公司不能清偿到期债务”无需以破产条件或执行终本为前提。法院审理后，除非有破产等特殊情形，应判决股东在未缴出资限额内对公司不能清偿的债务直接向债权人承担责任。

Abstract: The acceleration of shareholders’ capital contributions can be divided into two scenarios: bankruptcy liquidation and normal acceleration of capital contribution. Normal acceleration of shareholders’ capital contribution refers to the situation where a company, during its normal operation period (rather than in a state of bankruptcy or dissolution liquidation), requires shareholders to fulfill their capital contribution obligations in advance. The new “Company Law” Article Fifty-Four has expanded the applicable circumstances of previous accelerated capital contribution from bankruptcy liquidation to situations where the company does not have the reasons for bankruptcy or dissolution but is unable to repay the due debts. It grants dual claimant qualifications to company creditors and the company. Under the registered capital subscription system, the term interests of shareholders are limited to the extent that the company is able to repay the due debts. When the company is able to repay the debts, shareholders can claim the term interests and use them to oppose the company creditors; if the company is unable to repay the debts, shareholders lose their term interests and cannot use them to oppose the company creditors. At the same time, the determination of “the company being unable to repay the due debts” does not require the conditions for bankruptcy or the conclusion of execution finality. As long as the company fails to timely fulfill its debts, creditors can require shareholders to pay in advance the capital contributions to repay the debts. After the court’s trial, unless there are special circumstances such as bankruptcy, the judgment should be that shareholders shall directly bear the responsibility for the company’s inability to repay the debts to the creditors within the limit of the unpaid capital contributions.