On The Effect Of Stock Share Outer Transfer Contract In Limited Liability Company

The concept of shareholding is derived from corporation, but what is the nature of shareholding? There have been arguments about it, including theory of ownership, right of credit, right of membership and independent civil right.etc. Thus, it causes confusions about legal relationships of disputes generated by the identification of stock ownership. It also influences the effect of share transfer agreement. Corporation is a juridical association on the purpose of profit. It has the character of personal nature to some extent, but in contemporary corporation law system, it is not a enclosed legal entity. Corporation not only has the aim of profit, but also has the obligation to maintain the interests of relevant persons and whole society. It should enlarge the profits beyond the shareholder's interests; it has become corporation's legal and social responsibility. Under the condition, freely transfer of stock ownership especially that of Limited Liability Company is restricted to some extent in most countries and regions. The restriction has great influences on the identification of the effect of share outer transfer contract. The paper argues that share outer transfer contains conflict of rights and obligations, and even more important is that it concerns corporation maintenance and a great deal of legal relation among corporation, transferor, assignee and other shareholders. So we cannot simply analyze the effect of share outer transfer in the norm of traditional obligation contract. On the contrary, it should be put into the corporation which is an organization and society and be treated as commercial contract. We should be well aware of the differences of share transfer contract in Limited Liability Company from traditional civil contract, and then settle the conflicts between efficiency and fairness, freedom and security ,and even rearrange the conflicted rights in methods of theory and legislation.The dissertation is divided into 5 chapters.Chapter I mainly discuses the legal nature of shareholding and shareholding transfer. It firstly analyzes the definition and features of shareholding, especially the nature of shareholding. It in turn analyzes the doctrine about it, which is appeared in the theory and practice, including theory of ownership, right of credit, right of membership and independent civil right.etc. By comparisons, shareholding is included into the right of membership, an already existed civil right. At the same time, it accurately concludes the difference from right of membership in that stock ownership is a property right to very extent; it is suitable to the control on the abstract capital. Secondly, on the basis of analysis on the definition and features of stock ownership transfer, it analyzes Capital Subscription Transfer and Asset Transfer in order to accurately understand the shareholding transfer.Chapter II analyzes the features of shareholding outer transfer in Limited Liability Company. It firstly introduces the Company Contract Theory which has fundamental effect on the dispute of interests'conflicts among a great deal of legal relations caused by shareholding outer transfer and the nature of groupism of stock outer transfer. Secondly, it analyzes the organization law, and on the basis of it, it discusses the effect of organization act's character comparing to traditional contract acts. In the end ,it argues the nature of transaction law of shareholding outer transfer.Chapter III mainly discusses the different regulations on the shareholding outer transfer in foreign countries and China. It compares the restorations on it and its influences on the effect of transfer contract. On the basis of comparison, the paper agues that the restrictions on stock share are also the important control mood. To keep the personality of corporation is the value of stock share outer transfer's restriction. Therefore, the maintenance of self-feature of limited liability company has the system safeguard.Chapter IV compares and analyzes different opinions on the effect of shareholding outer transfer in China and their narrow limitations. Their irrationality lies in that they judge the effect of stock share outer transfer contract, which is commercial contract in the norm of traditional contract; it must cause the undistributed explanation.Chapter V is the conclusion part of the dissertation. It analyzes the should-be effect of the stock share outer transfer. It focuses on the division of internal and external relations of contract and that of corporation. It analyzes the different effect on the different subjects. Firstly, it forms the effect between assignor and assignee. Secondly, it forms the effect between assignor, assignee and corporation. Secondly, it analyzes the the effect on the corporation, only by corporation register, can the contract between assignor and assignee have effect on corporation. Then, it forms the effect between assignor, assignee, corporation. and the third party beyond corporation. last, it discusses the effect on third party. Business registration of stock ownership transfer has no effect on assignee's getting shareholder qualification and his exercise of share ownership; it only brings the effect against third party. However, business registration has the supreme effect. If the business registration is different from corporation registration, from the credibility of business registration and on behalf of the third party acting in good faith, we should decide the attribution of shareholding according to business registration.