Study On The Right Of Recovery Of Defective Equity Transferee

The right of recovery of defective equity transferee is the right of the transferee to be recovered from the transferor on the basis of increasing the liability of the transferee for the transfer of defective equity of the limited company.The clear right of recovery makes the company law strengthen the protection of the interests of the company’s creditors at the same time,not to ignore the interests of the defective equity transferee,to provide the transferee with a certain remedy way,is a more meaningful innovation in the history of the development of china’s corporate law.However,as Article 18 of the Judicial Interpretation of The Company Law（III）initially establishes the right to recover the defective equity transferee,the relevant provisions are too brief,and whether the transferee can enjoy the right of recovery in the case of the original shareholder siphoning the capital contribution or the transfer of the shares not yet in the term,whether the person is entitled to recover,whether the good-faith transferee can enjoy the right of recovery,The issues such as how the assignee exercised his right of recovery are not clear,and several amendments to the company law have not given sufficient attention to the issue of the right of recovery of the defective equity transferee,which has brought difficulties to the judicial application of more and more cases.In view of this,this paper starts from the basic provisions of Article 18 of the Judicial Interpretation of Company Law（III）,focuses on the theoretical basis arising from the recovery rights of defective equity transferees and the constituent elements and exercise of rights of defective equity transferees,and puts forward suggestions for the improvement of the normative reconstruction of the right of recovery of defective equity transferee.In addition to the introduction and conclusion,this paper is divided into four parts.The first part summarizes the legislative significance of the right of recovery of defective equity transferee and clarifies the theoretical basis of its production.The creation of defective equity transferee in the field of corporate law in China has the significance of clearly flawed equity transferors’ and transferees’ capital contribution responsibility,implementing the principle of capital maintenance while encouraging investment and balancing the interests between multi-subjects.The retracement of defective equity transferee is traceable,thetransferee of defective equity and the transferor bear joint and several liability to the company or the company’s creditors is the prerequisite for the defective equity transferee to enjoy the right of recovery,and on how the defective equity transferee’s right to recover is a matter of course recovery,subrogation and improper profit or no reason management theory,This article agrees with the statement of ex or forth,that the right of recovery of the defected equity transferee arises at the time of the establishment of joint and several liability,which constitutes the basis of independent claim.At the same time,this paper holds that the right of recovery of defective equity transferees belongs to the right of recovery of joint and several liability,not the right of recovery of unreal joint and several liability.The second part analyzes in detail the constituent elements of the rights to recover the defective equity transfer,including the general situation and the special circumstances.In this paper,in general,there should be three constituent elements of the right of recovery of defective equity transferee: the original shareholder has not fulfilled or fully fulfilled its obligation to contribute,that is,the transferee knows or should know about the defective equity,and the transferee has assumed joint and several liability,and under each element,the provisions of Article 18 of the Judicial Interpretation of the Company Law（III）should also be applicable to the withdrawal of capital contributions,the transferee including other shareholders within the company and other shareholders and external shareholders.A bona fide transferee shall bear joint and several liabilities and enjoy the right of recovery when he waives the contract of withdrawal of equity transfer.After this paper,this paper mainly discusses the additional conditions under which the transfer of outstanding equity and the transfer of equity are the other person to have the right of recovery under the special circumstances.In this paper,the case of non-term equity transfer,on the one hand,only consider the case of malicious extension of the term of shareholder spending after the company’s debt is generated,if the transfer of equity occurs after the company maliciously extends the period of capital contribution,then the responsibility to accelerate the maturity of capital contribution should be jointly and severally borne by the transfer shareholders and transferee,at which time the transferee enjoys the right to recover;In the case of multiple transfers of equity,the transferee may exercise the right of recovery to the transfer shareholder and to all malicious forehand transferees at the time of the re-transfer,and the agreed priority shall apply only to the direct before and after the hands of the recovery relationship.The third part mainly studies how the defective equity transferee exercises his right torecover.First of all,the analysis of the performance conditions,this paper holds that the defective equity transferee to fulfill the responsibility to exceed its share of the right to recover.Secondly,with regard to the scope of exercise,this paper holds that the scope of exercise should not be expanded at will,the scope of exercise should be extended to the relevant interest and necessary expenses,and the scope of exercise may be based on the transferee’s subjective status and equity transfer price to launch the transferee can be fully recovered,partial recovery and recovery amount of zero and other three cases.Then discuss the effect of exercise,including the effect of subrogation brought about by the assignee’s joint and several liability and the enlightenment of the subsequent secondary sharing rule on the expansion of the transferee’s right to recover.Finally,on the issue of the exercise of procedure,this paper holds that the mode of exercise can be simplified when certain conditions are met,and the statute of limitations shall apply to the general statute of limitations of civil claims-three years,calculated from the date on which the transferee assumes responsibility to the company or the company’s creditors.The fourth part of the defective equity transferee to the standard restructuring of the proposed improvement,a total of three points: The first is to redefine the "failure or failure to fully fulfill the obligation to contribute",the second is to clarify the regulation of the good-faith assignee,and the third is to clarify the exercise of the right of recovery of defective equity transferees.