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我国2014年的资本制度改革是一场自上而下的立法变革,取消最低注册资本和首次出资比例要求赋予了股东自由确定注册资本数额及安排出资时间的自由,但畸低的注册资本会使公司设立的严肃性及有限责任的正当性产生疑问,而畸高的注册资本则归咎于完全认缴制并导致了套利行为。改革丝毫不改变我国仍是法定资本制的本质,不改变股东在公司成立时就对全部注册资本承担出资义务的事实。以注册资本实缴制改认缴制为由取消验资以及虚假出资罪和抽逃出资罪在逻辑上并不成立,而应当由立法者作出独立的判断。对于股东出资义务,有必要承认设立中公司的主体地位作为公司设立阶段股东出资的接收者。对于规避出资义务的隐性实物出资或出资后公司以贷款方式返还股东的行为,应当认定股东未完成出资义务而非抽逃出资。
China’s reform of the capital system in 2014 is a top-down legislative change. The removal of the minimum registered capital and the ratio of initial investment requires the shareholders freedom to determine the amount of registered capital and the time for arranging capital contributions. However, the low registered capital will enable The seriousness of the establishment of the company and the legitimacy of the limited liability are in doubt. The abnormally high registered capital is attributed to the complete subscription system and led to the arbitrage. At the very least, the reform does not change the essence of our country being still a statutory capital system, nor does it change the fact that shareholders should assume the obligation to contribute all the registered capital when the company is established. It is not logically possible for the crime of canceling the capital verification, falsifying the capital contribution and withdrawing the capital contribution on the basis of the fact that the registered capital is actually paid and reformed, but should be made independently by the legislator. For shareholders to contribute obligations, it is necessary to recognize the dominant position of the establishment of the company as a recipient of shareholder contributions during the establishment of the company. For the avoidance of investment obligations invisible investment in kind or after the return of shareholders to the company by way of loans, the shareholders should be found not to complete the obligation to fund rather than evaded investment.