Study On The Mode Of Stock Right Transfer

The mode of stock right transfer is a significant part to be studied while studyingthe mode of right transfer in the field of civil law. To have a good study on the modeof stock transfer will not only enrich and perfect the right transfer theory, but alsoguide practice and reduce disputes arising from and related with stock transfer. Duringthe procedure of stock right transfer, there are four different time points: theagreement taking effect, the performance of the agreement, the modification of therecords in the company register, and the modification of the records with the companyregistration authority. The four time points cause the uncertainty when the stock rightis transferred, and further cause disputes and claims in practice. The2005CompanyLaw had some general stipulations on stock right transfer, but it was too blanket to beused in claims. The newly amended Company Law still fails to give more detailstipulations on stock right transfer. The Fourth Judicial Interpretation on CompanyLaw (Draft) tries to define when the stock right is transferred, but it is not officiallypublicized. Therefore, the exact time when the stock right is transferred cannot berecognized in accordance with law.This paper focuses on the the stock right transfer of limited liability companycaused by legal act. By analyzing the nature of stock right, the schools regarding stockright as property right, member right, and independent civil right all have somedefects, but the school regarding the stock right as creditor’s right is reasonable. Thestock right assignor is like the creditor’s right assignor. From the perspective of the content of stock right, both the self-benefit right and the common-benefit right canonly be satisfied by asking the company to do or not to do certain things, which is likecreditor’s right; from the perspective of the exercise of the stock right, it must beexercised through the company instead of directly by the shareholder himself, whichis also like the creditor’s right. The creditor’s right nature of stock right determinesonly when the debtor knows who is the right creditor can the debtor performs itsobligations, and further determines the time stock right transferred is the time thecompany notified the transfer.There are mainly three modes on mode of stock right transfer: meaning creedmode, behaviorism mode, and registration creed mode. If the meaning creed modeadopted, the transfer of stock right is unknown to the company so the assignee cannotclaim stock right from the company. The right assigned is not stock right. Besides,meaning creed mode brings transfer risks. If registration creed mode adopted, thespeed of stock right transfer is slowed down, hindering the stock right transferfreedom. Notification mode of behaviorism mode is the most fittable: firstly, itcorrectly distinguishes act of liability and act of disposition; secondly, uponnotification the assignee gets the right to claim stock right from the company, which isaccorded with the logic “a right cannot be called stock right if it has not any stockright content”; thirdly, it can perfectly unify the property right alteration mode and theshare right transfer mode.To design and establish the mode of stock right transfer in accordance withnotification mode, the nature, subject and exercise of notification as well as the rightsand reliefs involved in stock right transfer shall be all fully considered. This papertries to make the author’s voice heard by attracting the eyes of the legislators, scholarsand judges, hoping a better mode will be established by the legislators so that thedisputes and unjust shall be avoided in the near future.