The Study Of The Right Protection Of The Spouses Of Shareholders In Equity Transfers

Because of no detailed provisions in the legislation for the rights of the spouses of shareholders in equity transfers, it has led to that the judges can not know what to do in the hearing this type of cases. It has legal basis for the shareholder spouses' rights and it means that the authorized clause of "It will comply with the rules that has been specified otherwise in the articles of association" which had been added in the Companies Act 2005 edition for the equity transfers of limited liability company; Meanwhile, not only must it comply with the provisions in the Companies Act, but also it must be reasonable. It can not infringe upon the interests of the spouses of shareholders. Or else, it is extremely easy to touch the increase and decrease of community property. Under suitable conditions, it has the basis of rationality for empowering appropriate rights to the spouses of shareholders who has equity transfers.Drawing lessons from the legislation of the states in the continental law system, the equity transfers have been restricted by the endowed rights to the spouses of shareholders including the agree right, right of preemption, right of claiming cancellation and others. Meanwhile, it is necessary to take restriction to the spouses of shareholders with the rights to avoid misusing the rights after endowing that to them. And so that it should insist in three basic principles:equity transfers must not be prohibited, it must not have unreasonable restrictions and it must not be forced to make an equity transfer.The writer has started with the case examples of that the shareholders had infringed upon the interests of their spouses because of following the principle of free transfer in the equity transfers of limited liability companies to discuss the rationality and legal basis of that the equity transfers of shareholders should be restricted by their spouses, analyzed the enjoyed rights and security of the spouses of shareholders in equity transfers by combining the related theory of equity transfers, the relevant provisions of the main countries and our country's attitude of legislation, and made a more thorough and comprehensive study for the right protection of the spouses of shareholders in equity transfers. It has a main content as following:It is in the first part to propose the problems to protect the rights of the spouses of shareholders in equity transfers. The writer has ever dealt with two typical cases about equity transfers in the judicial practices. During the course of law application, it had met with the game of the Marriage Law and the Companies Act which have raised a challenge to the principle of free equity transfers and suggested that it should protect the rights of the spouses of shareholders in equity transfers in the judicial practices.It is the legal basis for the enjoyment right of the spouses of shareholders. The writer thinks that his action will be according to the provisions of the property law and the marriage law as well as the company law. Otherwise, it will influence the increase and decrease the joint property of husband and wife easily. At that time, the right protection of the spouses of shareholders is not against to the liberty principle of equity.It is the moderation for the right protection of the spouses of shareholders in equity transfers in the third part. It is the guiding principle to study the aforementioned part of this article to realize the rationality to the right protection of of the spouses of shareholders in equity transfers and deeply hold the moderation of right protection simultaneously. With the direction of idea about moderate limit in the second chapter and in this chapter, it has studied how to hold the "limit" and borderline of the restrictions in the equity transfers of limited liability companies and avoid misusing the rights after endowing that to the spouses of shareholders. So, the spouses of shareholders should insist in three basic principles of equity transfer must not be prohibited, it must not have unreasonable restrictions and it must not be forced to make an equity transfer.It is in the forth part to build the security system of the rights for the spouses of shareholders in equity transfer. According to the legislative patterns for the limit of equity transfers of the main countries and regions and comparing with some parts of provisions in the Companies Act of PR. China, the writer has built the content of rights and exercise conditions of the spouses of shareholders in the equity transfer of limited liability companies and put forward my own views for the way of the right security of the spouses of shareholders.It is the conclusion of this article in the fifth part.