Section 1

Theoretical Functions of the Capital Reduction Rule

1. Protecting creditors and balancing the interests of shareholders

Capital reduction as an important means of corporate capital adjustment.[1] It plays a vital role in the modern corporate law system. With the implementation of the new Company Law, the specific provisions of the capital reduction rules not only make the capital reduction an effective means for companies to optimize their capital structure and cope with operational difficulties, but also further strengthen the protection of the rights and interests of shareholders and creditors.[2] This article will provide legal guidance for enterprises in practice by analyzing in detail the provisions on capital reduction in the new Company Law, combined with specific legal cases, and discussing the implementation process, legal review standards and practical application of capital reduction rules.

Why does a company need to be bound by the capital reduction rules of the Company Law if it adjusts and changes its capital out of operational needs, and if it is violated, it may even suffer a negative effect? The legislative basis for this is the principle of capital maintenance. The principle of capital maintenance was created to balance the interests of shareholders and creditors – "there is no doubt that capital will be consumed by investing in the normal course of business of the company; Some of this may also be lost in the course of the business in which the company is authorized to operate. All those who trust and deal with the company are aware of these risks and are willing to take them. However, they have the right to rely on, and the corporate legislation intends for them to rely on, the company's assurance that the company's capital will not be consumed beyond the commercial purpose described above, nor will it be derogated by its return to shareholders. In short, an arbitrary reduction of capital by shareholders would infringe on the independence of the company's property and shake the foundation of the basic system of company law, which is that shareholders are protected by limited liability. Although the three principles of capital, including the principle of capital maintenance, have been frequently criticized for reducing transaction efficiency and making it difficult to truly reduce business risks, [3]much of the controversy is whether and how to reduce the externalities of the corporate capital system through institutional reform,[4] and even the most radical opponents will admit that the corporate capital system should have the institutional objective of resisting the abnormal loss of corporate assets.[5]

In addition to creditor protection, capital maintenance will also affect the balance of shareholders' interests, because the amount of capital contribution of shareholders is also the basis for their exercise of rights and sharing of interests, and the allocation of equity based on real capital contribution can fairly and justly reflect the rights and obligations agreed upon by shareholders.[6]

As a result, the capital reduction rule requires a company to reduce its capital only after it has "satisfied the requirements for creditor protection and dealt with conflicts among shareholders".[7] Taking the capital reduction rules of the Company Law of the People's Republic of China as an example, it achieves the aforementioned dual objectives from two perspectives: in terms of creditor protection, China has borrowed from German-style legislation to establish a strict "creditor protection" model based on information disclosure,[8] that is, creditors should be notified in a timely manner and debts should be repaid or corresponding guarantees should be provided; In terms of the balance of shareholders' interests,[9] the Company Law stipulates that the capital reduction shall be resolved by the shareholders' meeting and approved by a two-thirds special majority, thus leaving the issue of shareholders' interests to the internal autonomy of the shareholders' meeting.

2. Market and regulation

Corporate law is embedded between the free trade of markets and government regulation, and this is especially true of the capital system: the pursuit of economic efficiency on the one hand and the security of transactions on the other. The relaxation or even abandonment of the statutory registered capital threshold at the front end of the corporate capital system around the world is an example of the new dynamic equilibrium achieved by the corporate capital system in the process of pursuing the two functions; At the end of the capital system, the capital reduction rules also need to be balanced between the dual functions of the market and regulation: the capital reduction rules should be born from the regulatory needs of protecting creditors and balancing the interests of shareholders, but at the same time, the capital reduction rules are limited by the functions of the market, and they need to overcome externalities and not unduly interfere with the freedom of transactions of commercial entities.

One manifestation of this restriction is that overly restrictive capital reduction rules may be questioned as excessively protective of creditors. This view was once held by the UK company law community, because under the UK Companies Act 2006, if a company wants to reduce its capital, it must give creditors a repayment or guarantee, which makes the position of creditors even higher than before the company was reduced.[10] Influenced by this view, the UK amended the Companies Act 2006 through administrative regulations, according to the current UK capital reduction rules, if a creditor wants to object to a company's capital reduction, it must not only prove that the creditor-debt relationship between the company and the company is valid, but also prove that "the possibility of the capital reduction causing the company to be unable to perform or pay off the debts due or claims is real". By imposing a certain burden of proof on creditors, English company law relieves the pressure on creditors to claim when a company reduces its capital.[11]

From the perspective of market functions, it is also possible to understand why many countries outside the region (e.g. Germany and the United Kingdom) would provide for simplified capital reduction procedures applicable in specific circumstances in addition to the general capital reduction procedures. While a finer web of legal rules may mean higher legislative costs and finer legal loopholes, it is true that distinguishing the applicable scenarios of the capital reduction process can avoid unnecessary institutional burdens on companies.[12] China's Company Law does not distinguish between the reasons for capital reduction, which means that the same capital reduction procedures are required for any reason, which is relatively loose compared to foreign experience.

Section 2

Practical Situation from the Perspective of Creditors

The capital reduction procedure also assumes the dual functions of balancing the interests of shareholders and protecting creditors.[13] Correspondingly, defective capital reductions in practice include: (1) failure to pay the capital reduction, (2) failure to convene a shareholders' (general meeting), (3) failure to notify creditors, (4) failure to directly notify creditors by publishing an announcement, and (5) failure to liquidate debts or provide guarantees. Among the five types of defective acts, items (1) and (2) harm the rights and interests of shareholders, and items (3)-(5) infringe on the rights and interests of creditors. Although these two functions are equally important, if we count the frequency of various flawed behaviors in capital reduction disputes in judicial practice, we will find that the core dispute of capital reduction disputes is still in the protection of creditors, and the capital reduction disputes arising from the damage to the rights and interests of creditors account for more than 90% of the total number of capital reduction disputes. This article focuses on the problems that arise in judicial practice, focuses on the protection of creditors in the rules for corporate capital reduction, and expounds on the problems in simple capital reduction.

The first question that arises is: is it always necessary to protect creditors in the process of reducing the company's capital?[14] If the company reduces the amount of registered capital due to operating losses after the shareholders have fully fulfilled the obligation to subscribe for capital contributions, and the shareholders have not actually withdrawn their capital contributions, is it still necessary to strictly comply with the creditor protection procedures stipulated in the new Company Law? Theoretically, in such a situation, the rights and interests of creditors are not impaired, and even such a capital reduction is conducive to the company's publicized registered capital level approaching the real asset level, and requiring the company that is already in a loss-making state to provide repayment or guarantee will inevitably make the company's operating conditions worse, and the legitimacy of the creditor protection procedure will be questioned. As mentioned above, although creditor protection procedures are born for regulatory functions, they also need to take into account market functions, and there are many institutional precedents in foreign laws that make this form of capital reduction subject to simplified capital reduction procedures.

In the context of the failure of the Company Law of the People's Republic of China to respond to this, there have been court rulings in practice that such capital reductions do not need to strictly perform the creditor protection procedures, and the adjudication idea is that "if the shareholders do not actually withdraw the funds during the process of capital reduction, it is a formal capital reduction, that is, although the registered capital of the company has decreased, the company's liability property has not changed." In this case, although the company's capital reduction is illegal and should be punished by the relevant management authorities, the shareholder has not actually withdrawn the capital contribution, infringed the company's property rights, and has not harmed the interests of creditors, so it cannot be determined that the shareholder has withdrawn capital contribution because the company's capital reduction procedure is illegal. ”[15]

Although there are already adjudicatorial opinions in judicial practice that support the application of the simplified capital reduction procedure to the formal capital reduction, this alone cannot correspond to the current Chinese law and is not sufficient to solve the practical problems related to the simplified capital reduction procedure: how to accurately define the applicable standards of the simplified capital reduction procedure?[16] How should the simplified capital reduction procedure be designed to prevent this simple system, which is based on market functions, from being used too flexibly by the market? In the context of the company's capital subscription system, how to understand the expression "the shareholder did not actually withdraw the funds" mentioned in the court's adjudication?[17] These questions are difficult to be comprehensively answered by sporadic referees' opinions, and it is up to the system designers to make an overall response based on the overall situation.

脚注

[1] 中国公司减资制度研究. 孙殿凯.东北财经大学,2020。

[2] 公司减资情形下债权人保护问题研究. 汪雯佳.南昌大学,2021。

[3] 施天涛：《公司法论》，法律出版社 2014 年版，第 169-170 页。

[4] 邓峰：《资本约束制度的进化和机制设计——以中美公司法的比较为核心》，《中国法学》2009 年第 1 期。

[5] 赵旭东：《从资本信用到资产信用》，《法学研究》2003 年第 5 期。

[6] 冯果：《慎重对待“资本维持原则”的存废》，《中国法律评论》2020 年第 3 期。

[7] [英]保罗·戴维斯、[英]沙拉·沃辛顿：《现代公司法原理（第九版）（上册）》，罗培新等译，法律出版社 2016 年版，第 339 页。

[8] 公司减资未通知债权人的股东责任[J]. 朱程斌;曹文兵.人民司法(案例),2018(26)。

[9] 傅穹：《公司减资规则论》，《法学评论》2004 年第 3 期；刘玉妹：《认缴资本制视野下公司減资制度的构建》，《法律适用》2016 年第 7 期。

[10] [英]保罗·戴维斯、[英]沙拉·沃辛顿：《现代公司法原理（第九版）（上册）》，罗培新等译，法律出版社 2016 年版，第 343 页。转引自Modern Company Law for a Competitive Economy- the Strategic Framework, A Consultation Document from the Company Law Review Steering Group, February, 1999。

[11] 有限责任公司定向减资非控股股东保护研究. 马源.内蒙古大学,2023。

[12] 《全国法院民商事审判工作会议纪要》理解与适用[M]. 刘贵祥.人民法院出版社.2019。

[13] 公司诉讼专题研究[M]. 李建伟, 著.中国政法大学出版社.2008。

[14] 公司违反通知义务减资中的债权人保护问题研究. 秦杰.甘肃政法大学,2023。

[15] 丰汇世通（北京）投资有限公司与黑龙江省农业生产资料公司案外人执行异议之诉纠纷再审案，最高人民法院第二巡回法庭民事判决书（2019）最高法民再 144 号。法院认为：“被告公司在因亏损减少其股东已经实缴的注册资本金额的过程中，存在违反《公司法》关于公司减资程序规定的情形，但股东并未利用减资实际实施抽回出资的行为，即公司虽减少其登记出资，但公司的权益并未因股东的行为受到损害，资产总量并未因此而减少、偿债能力亦未因此而降低，股东无需对减资部分承担。”

[16] 资本认缴制下公司减资制度研究. 刘瑶.华东政法大学,2023。

[17] 公司减资违反通知义务问题研究. 金莹.贵州民族大学,2022。

Future Development of China's Capital Reduction Rules (Part II）

1. Questioning the standard of net asset outflow

Although the simplified capital reduction rule has not been confirmed at the legislative level, Chinese scholars have long paid attention to the distinction between substantive and formal capital reduction at the theoretical level.[1] Feng Guo (2001) introduced the concept of "formal capital reduction" through the experience of extraterritorial legislation. Fu Qiong (2004) further proposed the criterion for distinguishing between the two: according to the outflow of the company's net assets, the actual capital reduction causes the company's net assets to flow from the company to shareholders, and the form of capital reduction is only "the equal proportion elimination of the accounts at both ends of the company's balance sheet", and the flow of the company's net assets does not occur. Net assets are originally a financial concept, which refers to the difference between assets and liabilities, which is generally equal to the owner's equity, and the standard of net asset outflow is clear and clear, so this distinction standard is also used as a reference by the judicial practice community.[2] However, the author believes that this standard is not accurate and appropriate under the current corporate capital system and accounting system.

First of all, if the Chinese accounting standards are used to express the form of capital reduction, it should be manifested as a mutual offset between the two owners' equity accounts, with the debit of paid-in capital or equity indicating a decrease in paid-in capital, and the crediting of undistributed profits to indicate the write-off of the operating losses of the enterprise reflected under the undistributed profits account.[3]

The more critical problem is that although the net asset outflow standard is indeed self-consistent in the context of the corporate capital system that requires full paid-in, after the Company Law established the installment payment system and abolished the restriction on the term of capital contribution, the net asset outflow standard is no longer compatible with the current capital system - the difference lies in the determination of the capital reduction of the subscribed and unpaid part. Based on the prudential requirement of accounting information, accounting records prefer to undervalue rather than overestimate assets, so accounting only reflects the paid-in part of the shareholders as "paid-in capital" (for limited liability companies) or "share capital" (for companies limited by shares), but not the subscribed capital of shareholders. In short, the registered capital of a company under the subscription system or essentially the subscription system is meaningless at the accounting level, and the reduction of the subscribed but unpaid part of the capital has no impact on the company's net assets, even regardless of whether the subscribed capital is due.[4] If the net asset outflow criterion is strictly applied, the reduction of the unpaid part of the subscription is undoubtedly a form of capital reduction. Therefore, is it possible to apply a more lenient creditor protection procedure to the situation where the company resolves to reduce the subscribed unpaid-up capital? Or, under the existing corporate capital system,[5] if there are defects affecting the interests of creditors in the process of reducing the subscribed but unpaid capital, can it be argued that the reduction of the subscribed but unpaid shares did not result in the flow of the company's assets to shareholders and did not affect the company's net assets, so the failure to notify creditors of the capital reduction, to pay off their claims or to provide guarantees should not affect the effectiveness of the capital reduction?

Further questioning shows that the above issues are to a large extent related to the significance of the subscription of capital contributions to the company by shareholders who have not yet completed the capital contribution period. In the eyes of scholars who support the fact that shareholders' subscribed capital is also a company's liability property, it may be difficult to establish a lower procedural normative requirement for such a capital reduction: according to corporate jurisprudence, shareholders' subscribed capital contributions are an important part of the company's liability property, and the company's capital system arrangement at most enables the company to have a certain degree of financing flexibility according to its needs; The capital contribution subscribed by shareholders but not actually paid in conforms to the definition of "property" in the Civil Law, which is more in line with the expression of "the company shall be liable for the company's debts with all its assets" under the paid-in capital system to "the company shall bear the company's debts with all its assets" under the paid-in capital system.[6]

However, if they are advocates of the interests of shareholders in the term of capital contribution, they will have different views on this: although the amount of subscribed capital contribution in the past period can be regarded as a forward claim owned by the company, the debt cannot really help the company to carry out business activities, and the paid-in capital is closely related to disposable assets, and the subscribed capital is far from it, so the paid-in capital contribution should be the only criterion for measuring the company's risk-bearing ability.[7] This concept has been adopted by the Japanese Commercial Law, which limits the company's capital to the issuance of capital rather than the registered capital,[8] and establishes the basic concept that the company's operation should be based on paid-in capital, which is intended to prevent the counterparty from misunderstanding the company's business scale and solvency due to the registered capital of a Japanese company under the authorized capital system.

In understanding the significance of subscribed capital to a company and further considering what procedures should be applied to its capital reduction, the author believes that it is necessary to return to the value and goal of the Company Law, that is, to establish a long-term and stable corporate operation mechanism. The original legislative intention of the Company Law to establish the subscription system is to facilitate the financing and establishment of companies, rather than to encourage shareholders to carry out unserious company establishment behaviors, and in order to ensure that the relaxed subscription system will not be manipulated and used, the back-end capital withdrawal mechanism should not be relaxed. If it is believed that the simplified capital reduction system can be applied to the capital subscribed by shareholders without notifying creditors or providing repayment or guarantee, it may further incite the public's speculative psychology, making "registered capital" a numbers game,[9] and eventually making "registered capital" completely hollowed out and becoming a legal concept that is hollowed out.

From this point of view, if the distinction between formal and substantive capital reduction is understood by the standard of net asset outflow, there is a contradiction and incompleteness in answering whether the simplified capital reduction system is applicable to the capital reduction of subscribed unpaid-in capital. In the final analysis, the net asset outflow standard was proposed in the context of China's paid-in capital system, and the current corporate capital system is very different from that time, so the net asset outflow standard under the paid-in system does not overlap with the net asset outflow standard under the subscription system. In the author's opinion, the definition of formal capital reduction should be returned to its original source and its purpose and fundamental characteristics, so as to avoid the need to adjust with the changes in capital rules, and there is no need to worry about the changed business form covering up the substance.

2. The future possibility of the simplified capital reduction system

The Company Law's silent response to whether the simplified capital reduction system can be applied to the form of capital reduction has forced it to face the embarrassment that judicial practice precedes the regulations.[10] In response to this issue, the Company Law has added a special provision on simplified capital reduction on the basis of the original capital reduction rules, the details of which are as follows:

Article 225 Where a company still suffers losses after making up its losses in accordance with the provisions of Paragraph 2 of Article 214 of this Law, it may reduce its registered capital to make up for its losses. If the registered capital is reduced to make up for the loss, the company shall not distribute it to the shareholders, nor shall it exempt the shareholders from the obligation to pay capital contributions or shares.

Where the registered capital is reduced in accordance with the provisions of the preceding paragraph, the provisions of paragraph 2 of the preceding article do not apply, but it shall be announced in a newspaper or in the national enterprise credit information publicity system within 30 days from the date on which the shareholders' meeting makes a resolution to reduce the registered capital.

After the company reduces its registered capital in accordance with the provisions of the preceding two paragraphs, it shall not distribute profits until the cumulative amount of the statutory reserve fund and the discretionary reserve fund reaches 50% of the registered capital of the company.

The phrase "the provisions of Paragraph 2 of the preceding article shall not apply" mentioned in this article correspond to the provisions of paragraph 2 of Article 224 of the current Company Law on notifying creditors or making announcements and providing repayment or guarantee upon their request. Compared with the previous analysis, the legislation of the Company Law on the simplified capital reduction rule is closer to the German style, and the legislative language has reflected the core characteristics of the simplified capital reduction rule.

a.The premise of simple capital reduction has been established

German company law requires that before a simple capital reduction, a company should first dissolve the statutory provident fund, capital reserve and retained earnings; Article 225 of the Company Law requires that if a company still suffers losses after making up its losses, it can reduce its capital simply. Both establish the financial premise for a simple capital reduction.

It is worth mentioning that Article 224, paragraph 2, cited in Section 225, is also a revised provision, with the significant difference between the CPF deficit making rule in Article 214 of the current Company Law is that the Company Law allows the use of capital reserve to cover losses, in other words, the Company Law allows companies to use surplus reserve funds (including statutory reserve funds and discretionary reserve funds) and capital reserve funds to cover losses, i.e. all types of provident funds can be used. After the loss is covered in this way, the loss still exists, and the simple capital reduction can be carried out. In contrast, Germany's simplified capital reduction rules allow companies to retain statutory provident funds, capital reserves, and retained earnings within 10% of the registered capital after capital reduction, while China requires the exhaustion of all provident funds that can be used to cover losses, and the threshold for simplified capital reduction rules in the Company Law is higher.

Judging from the current wording of the Company Law, the use of capital reserve to make up for losses must be "in accordance with the regulations", that is, there is no restriction on the use of capital reserve to make up for losses, which is also reasonable. According to the Accounting Standards for Business Enterprises, the sources of capital reserve include capital (or equity) premium and other capital reserves.[11] The main reason for the previous prohibition on using capital reserve to make up for losses is that capital reserve is mainly a kind of book value-added and has no actual connection with the business behavior of the enterprise, and the loss is the result of the business activities of the enterprise, so the use of capital reserve to make up for losses is not in line with accounting principles. However, this view mainly refers to other capital reserves, and the capital (or share capital) premium generated by shareholders who pay more than they subscribe is not within this range, so although the current provisions on the use of capital reserves to cover losses have not yet been promulgated,[12] the author believes that it is very likely that capital (or equity) premiums will be allowed to make up for losses in a differentiated manner.[13]

b.Limit the purpose of simple capital reduction

Germany's simplified capital reduction rules expressly prohibit companies from distributing the income obtained from the dissolution of statutory provident funds, retained earnings and capital reduction to shareholders in any form, or reducing shareholders' capital contribution obligations; Article 225 of the Company Law clearly states that "no distribution shall be made to shareholders,[14] nor shall shareholders be exempted from the obligation to pay shares". Both are restricting the use of simple capital reductions.

This is the proper meaning of the simplified capital reduction rule. Shareholders and creditors are at opposite ends of the scale, and the rules of company law need to be careful to maintain a balance between the two. The reason why the simplified capital reduction rule can provide shareholders with the convenience of the capital reduction procedure and make the company do not need to notify or compensate creditors is because it only refers to the specific situation that the assets that have been actually paid by the shareholders are lost due to the company's operating losses, and the registered capital in the registered sense needs to be adjusted to be consistent with the actual state. Any use of this rule to distribute to shareholders or to exempt shareholders from their obligation to make capital contributions would constitute an abuse of the simplified capital reduction rules.

c.Limit the distribution after capital reduction

Germany's simplified capital reduction rules clearly state that after a company makes a simple capital reduction, the company can only distribute profits after the total statutory reserve fund and capital reserve reach 10% of the total basic capital of the enterprise; In addition, dividends of more than 4% can only be paid in a business year 2 years after the capital reduction resolution is made. Article 225 of the Company Law requires that "after a company has reduced its registered capital in accordance with the provisions of the preceding two paragraphs, it shall not distribute profits until the cumulative amount of the statutory reserve fund and the discretionary reserve fund reaches 50% of the registered capital of the company." "Both are intended to restrict the distribution of profits by companies after a simple capital reduction.

Based on China's profit distribution principle, the company can only distribute the after-tax profit of the current year after making up for the loss and withdrawing the statutory provident fund;[15] Article 211 of the current Company Law stipulates that 10% of the company's after-tax profits for the current year shall be included in the company's statutory provident fund, and the cumulative amount of more than 50% of the registered capital can be withdrawn. However, the Company Law proposes a higher threshold for profit distribution after simple capital reduction, that is, profits can only be distributed when the cumulative amount of statutory provident fund exceeds the registered capital (in other words, more than 100% of the registered capital).

The purpose of the simplified capital reduction system to restrict the subsequent distribution of shareholders is still to balance interests. It is obvious that after the company reduces its registered capital through a simple capital reduction, the company's profit distribution threshold will be lowered accordingly - the "loss" compared to the registered capital before the capital reduction will no longer exist or at least decrease, and the absolute value of the statutory reserve fund (50% of the registered capital) as the distribution threshold will inevitably decrease. If a company excessively uses the simplified capital reduction system to make a large capital reduction, together with the lowered distribution threshold, it may cause the company's assets to flow out to shareholders more quickly and in accordance with laws and regulations, which is not the original intention of the simplified capital reduction system. Therefore, both the German simplified capital reduction rules and the Company Law choose to restrict the distribution of shareholders' benefits after the simplified capital reduction.[16]

Comparatively speaking, although both restrict the distribution of shareholders' benefits, the restrictions adopted by the two are not the same. Although Germany's simplified capital reduction rules also limit the proportion of statutory provident fund, the ratio is only required to be 10%, which is even lower than the general distribution threshold in China, which should reach 50% of the registered capital. A more substantial restriction is that it requires a company to pay no more than 4% of the company's registered capital at the time of the distribution resolution within two years, and the idea is to weaken the speculative psychology of shareholders by maintaining a low dividend distribution ratio for a longer period of time. However, the Company Law raises the profit distribution threshold from 50% of the registered capital of the statutory provident fund to 100% of the registered capital, and there is no restriction on the time period.

脚注

[1] 冯果：《论公司资本三原则理论的时代局限》，《中国法学》2001 年第 3 期。

[2] 参见华某诉圣甲虫公司公司决议纠纷，上海市第一中级人民法院二审民事判决书（2018）沪 01 民终 11780号：“从公司净资产流出与否，可分为形式性减资和实质性减资。形式性减资是只减少公司的资本额，但不将净资产向外流出；实质性减资是公司注册资本减少的同时将一定的金额返还给减资股东，从而导致公司净资产的减少。两者的目的和内涵不尽相同。形式性减资是在公司严重亏损时使得公司的资本额与实有资产水平接近，不产生公司资产的流动，有利于真实显示公司的信用状况，反而有利于交易安全；而实质性减资则产生公司资产的流动，导致公司的净资产减少，直接影响到公司信用和偿债能力的减弱，实质上是将股东的出资予以退还，从而使得公司的责任财产减少，这就等于股东优先于债权人回收所投入的资本。” 浙江省温州市中级人民法院再审民事判决书，(2019)浙 03  民再 63  号：“公司减资分为实质减资和形式减资，实质减资是指减少注册资本的同时，将一定资产返还给股东，从而减少公司的净资产。形式减资是指只减少注册资本额，注销部分股份，不减少净资产的减资。”

[3] 公司减资纠纷法律问题研究. 余帅.兰州大学,2023。

[4] 已有学者主张将已到期的认缴出资记为债权（其他应收款），负债端仅将未催缴出资作为注册资本的调减项，并将未催缴的出资债权能否实现的情况记录在资产负债表的附注中，在未催缴的出资债权确实不能实现时，应对其作减值评估，由此形成的差额应从公司当年可分配利润中扣除。参见丁勇：《认缴制后公司法资本规则的革新》，《法学研究》2018 年第 2 期。本文仅基于目前的会计制度写作。

[5] 有限责任公司定向减资研究. 焦信婷.中国政法大学,2021。

[6] 钱玉林：《股东出资加速到期的理论证成》，《法学研究》2020 年第 6 期。

[7] 彭真明：《论资本认缴制下的股东出资责任——兼评“上海香通公司诉吴跃公司等股权转让纠纷案”》，《法商研究》2018 年第 6 期。

[8] 《日本商法典》第 284 条规定：“公司的资本，本法另有规定的场合除外，为已发行的发行价额的总额”。

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[13] 公司违法减资纠纷裁判路径的检讨与立法矫正[J]. 何林峰.甘肃社会科学,2022(06)。

[14] 股东平等视角下的减资规制研究[J]. 郜俊辉.中国政法大学学报,2023(01)。

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