Thesis:Discussion Over Defective Capital Contribution Of Equity Transfer In The Limited Liability Company

In recent years,problems arising from capital contribution flaw of equity transfer dispute in limited liability company often appear in a large amount,and that is a big difficult problem to the court trial and theoretical circles.To summarize,it mainly involves capital contribution flaw of shareholder qualification,the effect of the flaw share transfer contract judgment,flaws in the transfer of shares triggered the contributive responsibility and other issues.About the relationship between investment behavior and the qualification of shareholder,the essence of the controversy is if the capital contributions of the shareholders has inevitable connection between the obtaining of the shareholder qualification. About this,there are two diametrically opposed theories, substantial elements of said and formal elements of said.To the effectiveness of defective equity transfer contract,current law and judicial interpretation in our country have not regulated clearly,therefore,controversy about the effectiveness of defective equity transfer contract will continue in a certain period of time.As a result,in the judicial practice,decisions of different courts are different,and it not only affect the judicial unification but also is not conducive to the protection of the interests of the bona fide assignee.To the capital contribution liability arising from defective equity transfer,there haven’t been any regulations in our company law legislation in a long time. New company law of the judicial interpretation of three in2011has made some regulations about it,and it has established relatively authoritive and uniform legal norms to the problem solving about capital contribution liability arising from defective equity transfer in theory and practice and it also has provided standard material to depth research about this in commercial field. However,regulations in new company law of the judicial interpretation of three are not detailed,and the maneuverability of the regulations is not high in judicial practice,therefore,there is still some detailed research space and room about this. These are the issues discussed in this thesis. This thesis is divided into five parts.The first part, summary of defective capital contribution.This part gives a clear definition of defective capital contribution,thinks that defective capital contribution is that investors, violating the statutory duty of capital contribution, are not contributive,or capital contribution obligations does not comply with the contribution agreement or the articles of association of the company or the provisions of the law,or smoke escape contributive behavior. At the same time, according to different standards,it summarizes defective capital contribution types.The second part, determination of shareholder qualification of defective capital contributor.This part puts forward the judgment standard of defective capital contribution of shareholder qualification, based on the analysis of existing views in theory,and points out that limit of defective capital contribution of shareholding is justified.The third part, effect analysis of defective capital contribution of equity transfer contract.This part introducts and analysises existing controversial theories about effect of defective capital contribution of equity transfer contract in theoretical circles and judicial practice.At last,it puts forward the basic principle and specific standard that we should abide when judging the effect of defective capital contribution of equity transfer contract.The fourth part,responsibilities of defective capital contribution after the transfer of defective shares.About it,there are four theories,and they all have reasonable aspects,but have defects.New company law of the judicial interpretation of three has made some regulations about it,but not detailed.The author,based on drawing lessons from foreign related legislation/will put forward his point of view,including factors to consider when judging and specific responsibilities in different situations.The fifth part, relief of right and advance in risk prevention of defective equity transferee.The laws should make related regulations on relief of right for bona fide transferee who has reasonable trust after he has been transferred defective equity from the transferor, including legal basis for relief of right and specific ways.At the same time,to the defective equity transferee,it is more important to improve his awareness of risk prevention and take measures to effectively control the risk of defective equity transfer.