Research On Relative Legal Issues Of Defective Equity Transfer Of Limited Liability Corporation

Disputes arising from shareholders’ defective capital contribution and subsequent equity transfer are common in practice,especially after the revision of the new company law,the threshold of company establishment is decreasing,and the phenomenon of false contribution and capital flight is increasing.The main legal basis for regulating the behavior of defective capital contribution and defective equity transfer is the judicial interpretation of company law(three),but there still remain some problems in judicial interpretation waiting for solution.This paper starts from the trial practice case,puts forward some problems to be solved,through empirical research and combining with civil law and company law principle,issues like problem identification standards,influencing factors,the effectiveness of defective equity transfer equity transfer of defective equity after the legal liability of the type and the type of distribution are studied.The first chapter of this paper combs the basic theory of defective equity.For the definition of defective equity from the narrow perspective,and to expand the presence of defective equity definition phenomenon in practice,this paper focuses on the substantive elements,discusses the behavior of investment and capital appear flaws,and believes that the essence of defective equity is the obligation of capital contribution defective performance lead to equity attached with a series of burdens.According to the time and stage of the defect,the defective equity can be divided into the defective equity in the process of capital contribution and the defective share in the process of capital increase,which is essentially the same among the two.According to the types of flaws,the defective equity can be divided into three categories,we should distinguish the contribution of defective equity and fails to complete the equity investment;the withdrawing shareholders through a certainmeans to enable the company to return to shareholders and investors is the property damage of the principle of capital maintaining.Although the capital contribution is defective,it does not affect the acquisition of the identity of the shareholders.It is considered that "defective capital contribution hinders the acquisition of shareholder qualification",which has neither legal basis nor causal relationship,and may also cause company capital to be enriched.Although the defect of capital contribution does not prevent investors from obtaining shareholder status,the defects of capital contribution have different degrees of influence on shareholders’ rights,which will lead to limited shareholders’ rights and even shareholders’ loss of rights and removal.Based on the existing judicial interpretation,we need to improve the limitation mechanism of shareholders’ rights.The restrictions on shareholders’ rights should also include part of the common interest rights.We need to distinguish between shareholders’ loss of rights and shareholder’s delisting,and clarify the different applicable conditions and effects.The second chapter of this paper studies the basic idea of judging the validity of the contract for the transfer of defective shares.The transfer standard of the defective share transfer contract is the collection of property rights and the right of identity,so the particularity of the commercial law should be considered.About the four theories of contract effectiveness,the difference is mainly focused on two questions.The first one is whether defective contribution affects shareholder qualification and the effectiveness of contract,and the second one is the function of intention expression in judging the validity of defective equity transfer contract.The first problem has been answered.The trade-off between ineffectiveness and capital system is that there is no correct understanding of the relationship between capital contribution and shareholder qualification,nor does it distinguish the burden behavior and punishment behavior.The second problem is the difference between absolutely effective theory and distinction theory.Absolutely effective theory pays attention to the commercial efficiency,puts forward higher requirements on the capacity of the parties,and the distinction theory is relatively fair,considers the true meaning of the parties that allow equity transfer contract revocation.This paper studies the cases in the trial practice,refers to the trial opinions issued by courts,and believes that the distinction theory has been fully recognized.When deciding the validity of a contract,it should be clear that the defective contribution itself does not affect the validity of the contract,nor the transfer of thedefective share right.The main idea of this article is that we should encourage equity transfer in principle,and conclude that the equity transfer contract is effective,but we should also fully consider the real intention of the parties,especially the assignee,so as to reduce the injustice caused by the flaw of intent.Factors such as coercion,fairness and so on can also lead to flaws in intent,but this article focuses on the informed situation of the transferee,and studies the meaning,elements and effects of the meaning expression error and fraud in the defective share transfer.Specifically,we should apply the "general principles of civil law" about the defects of the declaration and shall allow the assignee by mistake or revocation of the contract on the grounds of fraud in meaning,but also should not reduce prudential obligations on the transferee of the requirements.The specific approach includes: without commercial practices appropriate due diligence constitute gross negligence,the transferee shall not claim a major misunderstanding to support the proposal of "fraud";appropriate restrictive interpretation of the transferor did not constitute fraud.Generlly,the validity of contract should be fixed as soon as possible to reduce the adverse impact on the company and the creditors of the company.The third chapter of this article tries to build a liability system after the transfer of defective shares.In order to reflect the diversified protection of the companies and creditors affected by the shareholders’ defects,the law should set up civil liability,administrative responsibility and criminal responsibility.The civil liability includes the following: the first one is shareholders of the company’s capital adequacy liability,the second one is the liability for the defective capital contribution of shareholders to the creditors of the company,the third one is of the defective capital contribution of shareholders when the company set up properly fulfill the obligation of capital contribution of shareholders’ liability for breach of contract,the fourth one is the equity transfer from the point of view,because the underlying equity is not comply with the contract by transferring the shareholders of the transferee shall bear the liability for defects.About capital adequacy responsibility,if the transferee knew the existence of the defective capital contribution,it is similar to the coexistence of debt undertaking,and the assignment of the transferee shall bear joint liability;if the transferee does not know its flaws and can not be simply unaware of the grounds of exemption,we still have to return to the issue of contract validity.The transferee still has the right to recourse the transferable shareholder as the ultimate responsible person after assuming his liability.The liability for supplementary compensation forthe creditor is consistent with the responsibility for capital enrichment,and the conditions of the assignee’s responsibility are the same.The liability for supplementary compensation can be applied to the theory of subrogation,and it is necessary to take responsibility for the premise that the property of the company is not enough to settle the debt.The liability for breach of contract is a violation of the sponsors’ agreement.Whether the share transfer is valid or not,the liability for breach of contract will not be transferred or changed.The transfer shareholders to transferee to the assignee with a defective capital should also bear the liability for defect guarantee.The defect belongs to the defect of the object,and the constitutive requirements and the way of responsibility are different from the defect guarantee liability in the contract of buying and selling.