The Composition Of Bona Fide Acquisition Of Equity Under The Situation Of "Equities Being Sold Twice"

Before the promulgation of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(III)(hereinafter referred to as the " Judicial Interpretation of the Company Law(III)"),there were no specific provisions on the issue of bona fide acquisition of equity of limited liability companies in China's legislation,and there were different views in theory.Scholars with positive views about bona fide acquisition of equity believe that affirming this view is to maintain the stability of market order,the safety of transactions and the credibility of the appearance of right.Scholars who hold the opppsite view believe that the nature of equity is more special than the nature of real rights.While the company law gives the human nature of limited companies and the preemptive right of shareholders,it also makes a great difference between the equity transfer and the real right transfer.If the bona fide acquisition of the real right is directly used in the equity transfer,it is difficult to fit in the structure.The implementation of the Judicial Interpretation of the Company law(III)clearly stipulates that under the two circumstances of "the nominal shareholder disposes of the equity without authorization" and "equities being sold twice",the provisions of Article 106 of the Property Law of the People's Republic of China on bona fide acquisition can be applied for handling.This is a kind of progress in legislation,but also caused extensive discussion and some scholars' doubts.Equity and real right are different from each other in terms of the right nature,the transfer mode and the publicity of the appearance of the right.Judicial Interpretation of the Company Law(III)only points out that the system of bona fide acquition of real right should be applied by reference but does not clearly explain how to apply it.There are also many problems in the application of this clause in Judicial Interpretation of the Company Law(III).How to apply the bona fide acquisition of equity? What are the components of bona fide acquisition of equity under the situation of " equities being sold twice ",these issues need to be further clarified in theory in order to be applied in practice.On the premise of affirming the system of bona fide acquisition of equity,based on the provisions of Article 106 of the Property Law of the People's Republic of China,this paper analyzes the constituent elements of bona fide acquisition of equity under the situation of " equities being sold twice " by analyzing the views of scholars in the academic circle and combining with the relevant judgments of the people's court,hoping to make it applicable accurately in judicial practice.Under the situation of " equities being sold twice ",the elements of bona fide acquisition of equity should include four elements: unauthorized disposal,the third party's good faith,the transfer of ownership of equity,and the existence of the culpability of the real obligee.Unauthorized disposal is the prerequisite for the application of the system of bona fide acquisition.Under the situation of " equities being sold twice ",the essence of determining whether the second transfer of equity by the equity transferor is unauthorized disposal is to determine whether the equity transferor has the ownership of the equity in this case.The key to decide whether to have rights or not is to determine when the equity transfer,and the combination of creditor's rights doctrine and the restrictive provisions of the articles of association is more conducive to the application of bona fide acquisition of equity.In the element of the third party's good faith,the judgment time of good faith should be defined as the time when the third party in good faith acquires the equity,that is,when the ownership of equity transfer.The judgment standard of good faith should be analyzed from the subjective and objective aspects in combination with the actual situation.Subjectively,it should be manifested as "ignorance and no gross negligence",and "transfer at a reasonable price" can be regarded as the objective standard of good faith.The change of ownership of equity refers to the actual change of equity in the second transfer of equity by the equity transferor under the situation of " equities being sold twice ".It is very necessary to include the imputable elements of the real obligee into the system of bona fide acquisition of equity,and it should be regarded as one of the independent elements.