| The obligation of capital contribution of shareholders is the inherent legal obligation and the key in the process of the establishment of the company. On the other hand, equity transfer provisions of Limited Liability Company are one of the important contents of the Corporate Law. Equity transfer involved in the operation often is more complicated, generally refers to the shareholder of the target company is transferred his rights to the assignee and thus to enable the assignee to become target company’s shareholder. The equity transfer is an important form of raise capital restructure, optimize resources and shareholder exit. With the prosperity and development of the capital market in recent years, increasing the equity transfer transactions, the defective equity transfer dispute case also can be heard without end. Although the Corporate Law and relevant judicial interpretations on the equity transfer to provide a clear legal path, defective share transfer issues that frequently arise in practice are not explicitly stated. Defective share transfer agreement, as well as the responsibilities allocation of defective equity transfer issue is still not consensus in academia, where there is much room for thought and incomplete.In view of above, this article take defective equity transfer of the limited liability company shareholders to explore research, in order to benefit the legislation and judicial practice.Chapter I introduce the basic theory of equity transfer of the Limited Liability Company and domestic legislation situation and flaws. this part expounds the basic theory of the concept, types and legal nature of the defective equity, followed by a discussion of the legislate capital contribution obligations of shareholders in Chinese Corporate Law in different periods and its shortcomings, judges the relevant provision on the background of the new Corporate Law of shareholders.Chapter II analyzes if the shareholder of defects equity satisfied the shareholder qualification standards issues, this chapter first introduces the shareholders qualification conditions, and to discuss whether the defective equity of shareholders have the qualification of shareholders(rights and obligations). This part demonstrates the rationality and necessity of “approval on the qualification of defects equity shareholder†from the theory, legal provisions and judicial practice.On the basis of chapter II, Chapter III focuses on the effectiveness of defective equity transfer agreement. How to judge effectiveness of the equity transfer agreement is the first step to solve the relevant issues. This chapter analyses whether defective equity can be transferred. Then introduces different opinions about the validity of defective equity transfer agreement and come to conclude that affirm the effectiveness of the equity transfer agreement.Chapter IV describes the liability after transferring defective equity and related judicial relief. There are four theoretical perspectives. Through assess the different theories, this article concluded the civil liability of the valid equity transfer agreement, and further to study the rights of claim, in particular relief right of the assignee of defective equity. |
