论公司债权人对未出资股东及利害关系人的求偿权

公司债权人有权要求未出资股东承担补充赔偿责任的请求权,在公司法改采认缴资本制后,其重要性日益凸显。这种求偿权只有当公司已经丧失偿付能力且股东未履行出资义务时,才得以触发。它的实现有赖于公司债权人拥有知情权和举证责任的合理分配。未出资股东对公司债权人承担的是法定保证责任,司法解释将其设定为一次性责任存在着疏漏;未出资股东的利害关系人承担的则是以资本充实责任为基础的连带责任,此种责任在我国立法上既失之过窄,又失之过严。公司债权人的补充赔偿请求权具有比较优势,待时机成熟应将其上升为公司法层面的制度。

On the Right to Claim of Company Creditors to Shareholders with Unpaid Capital and Its Stakeholders

Company creditors have the right to claim shareholders with unpaid capital for supplementa-ry compensation liability. This right to claim has become increasingly prominent since the doctrine on sub-scribed capital is applied according to the company law. The right to claim can only be triggered where the company has been insolvent and shareholders fail to fulfill the obligations of capital contribution. The right to claim can be implemented in case that creditors have the right to know and the burden of proof is reasona-bly allocated. Shareholders who fail to fulfill the obligations of capital contribution should bear statutory guarantee liability rather than a lump-sum liability regulated by ludicial interpretations. Stakeholders of shareholders with unpaid capital should bear loint and several liabilities to fulfill the capital contribution , while this liability is regulated either too lenient or too strict. Therefore,the company creditor’s right to claim for supplementary compensation has a comparative advantage which can be legislated at the level of company law upon mature development.