股东违反出资义务应向谁承担违约责任

关于公司成立之后,股东未履行出资义务的责任承担,我国《公司法》相关规定存在不明确之处,值得进一步探讨。《公司法》第28条、第31条和第84条、第94条的规定,均涉及股东违反出资义务的责任,但存在体系上不一致及逻辑上的不严密之处,其中股东违反出资义务应当向其他股东承担违约责任的规定殊值质疑。显然,股东出资义务之性质是股东因违反出资义务而承担违约责任的理论基础。从公司设立协议、公司章程、公司法人性等方面对股东出资义务的性质进行分析,可以得出股东违反出资义务应当向公司而非股东承担违约责任的结论。

To Whom Should the Shareholder be Liable for Failing to Make Capital Contributions

Upon the establishment of the company where the shareholder fails to make capital contribu- tions, the liability thereof has not been explicitly specified in the Company Law. Provisions in Article 28, 31, 84 and 94 of the Company Law have all covered the shareholder＇ s liability for failing to make capital contribu- tions; however, there is systemic inconsistency and incompleteness in logic, particularly it should be further reviewed about the liability of the shareholder at fault to other shareholders. It is obvious that breach of con- tract is the theoretical basis for the shareholder＇s liability for failing to make capital contributions, but based on analyzing the nature of shareholder＇ s capital contribution from such aspects as of the agreement for compa- ny establishment, the company charter, the judicial person feature of the company, it can be concluded that the shareholder should be liable to the company rather than to other shareholders for his failure to make capital contributions.