论违反出资义务的法律后果

公司法上的出资义务是发起人、认股人以及股东依法向公司履行的一项给付义务。违反该项义务,应当向公司承担违约责任。股东违反出资义务,并不影响其股东资格,但其股东权的行使应当受到制约。股东权限制理论是从违反出资义务股东的角度作出的制度安排,但这一理论安排没有考虑到具体的违反出资行为对公司及守约股东的损害程度,而且不能明确何种权利应当受到限制以及在何种程度上受到限制。事实上,赋予公司和守约股东抗辩权更有利于保护公司和守约股东的利益。在违反出资义务的情形下,股东转让股权的,无论受让人善意与否,均应当连带承担出资补足责任。在股东拒不履行出资义务时,公司可以启动失权程序,终局性地解除违约股东的股东资格,以达到维护公司稳定、保护公司资本真实的目的。

On Legal Consequence of Breaching the Obligation of Contribute Capital

Company promoters, company subscribers and company shareholders have the obligation of paying money to the company, which is called obligation of capital contribution. If they breach the above obligation, they should be liable for breach of contract. If corporate shareholders fail to contribute capital to the company, they will be restricted in exercising their rights as shareholders, while they are still shareholders. The theory of limit shareholders＇ fight is founded on the question of shareholders＇ failure to fulfill their obligation of contrib- ute capital to company, but this theory does not answer which rights should be limited, or to which degree rela- tive rights should be limited. In fact, endowing company and shareholders who obey law the fight of defense will protect their interests. If shareholders who have breached the obligation of contribute capital to the company transfer their shares, they should undertake joint liability of complementing capital to the company, even if the assignees are in good faith. If the shareholders do not fulfill the obligation of contribute capital, the company should activate the procedure of lost rights and therefore fire them, so as to maintain steady of the company and protect corporate capital.