Equity Of Limited Liability Company Acquired In Good Faith In Equity Transfer

Provisions on Several Issues about the application of the People’s Republic ofChina Company Law (Ⅲ) or Company Law Interpretation (Ⅲ) taking into effect onFeb,16th2011made a rule on the acquisition in good faith of nominal shareholderstransferring of their equity as well as a second sell of equity. From then on, it legallysolved the problem whether equity can be acquired in good faith in the theoretical andpractical fields. Company Law Interpretation (Ⅲ)pointed out: when trying the case ofthe acquisition in good faith of equity, people’s court can refer to the provision of theNo.106of the Real Estate Law. In other words, the constitutive requirements of theacquisition in good faith of equity should refer to the constitutive requirements of theacquisition in good faith. Judicial interpretation made such rules, in the analysis ofspecific requirement, for example, the judgment of good faith, whether we can refer tothe constitutive requirements of real right? The acquisition in good faith has a longhistory and perfects day by day, which has become an indispensable system to ensurethe consistency and security of trades. Compared with acquisition in good faith ofcivil law, although the two systems have some similarities, they do have some evidentdifferences. Equity as an independent type of right belongs to not only property rightbut also personal right, so equity itself can not merely copy the system of acquisitionin good faith of real right. The acquisition in good faith of equity should be based onunauthorized disposition, but legally identifying unauthorized disposition willdefinitely relate to the analysis of the changes in equity mode, which, however, doesnot reach consensus in theoretical field in our country, and meanwhile was notexplicitly stipulated, thus greatly influence the application of acquisition in good faith.This paper is to analyze the cases of acquisition in good faith for equity, talk about thechanges in equity mode and find out the acquisition in good faith for equity to providefoundation for legally using the system of acquisition in good faith for equity inaccordance with theories and legal practice.This paper together adds up to four parts apart from the parts of introduction and conclusion, approximately17,000words.The first part is to introduce the case to be studied, mainly talk about the detailsof the typical case of acquisition in good faith for equity, including the facts,controversial points and the judgment.The second part is to analyze whether nominee shareholder disposing of equitybelongs to unauthorized disposition, mainly stating three legal problems, including theconfirmation of the qualification for shareholders, the judgment of unauthorizeddisposal of equity and assessment of the case to come to the conclusion that nomineeshareholder disposing of equity belongs to unauthorized disposition and can applyacquisition in good faith for equity.The third part is to analyze whether the equity alteration registration procedurecan influence the effect of the equity alteration. First from the point of view ofJurisprudence, studying the systems related to acquisition in good faith for equity toclarify the effect of equity registration and mode of equity alteration to be adopted,concluding that the equity alteration registration procedure shall not influence theeffect of the equity alteration.The fourth part is how to judge the good faith. By analyzing whether theplaintiff is subjectively in good faith to clarify the meaning of good faith and theallocation of the burden of proof.