| The increase in income has made people’s investment forms more diversified.People have also started new investment models while saving deposits in banks.One of them is to invest in the establishment of a limited liability company or to become a shareholder of a limited liability company through inheritance.When a couple divorces,the division of the property may be involved.Although divorce by agreement is common,when a couple cannot reach a property division agreement and seeks legal help,we also need to have enough wisdom to solve the problem.However,due to the uncertainty of the legal regulations and the limited theoretical research,various problems often occur when the equity division of a limited liability company is involved.In fact,the split of equity related to varius interests.Focusing only on the interests of husband and wife may adversely affect the company or other shareholders.If we only focus on external interests,it will be unfair to the couple.The question then is how to balance the interests between the two? How to effectively solve the problems in the split of husband and wife equity?In this regard,the author mainly discusses in five parts.The first part is an introduction.The author mainly briefly introduces the current status of judiciary,research status and research scope of equity division.At present,the academic community does not pay enough attention to this problem,mainly researching from the theoretical level,and the research focuses on the division of different types of equity.Therefore,the author mainly studies the above defects in this article.The second part is a brief introduction to the current situation of the limited liability company’s equity division.In view of the status quo of the legislation,the author mainly sorted out the relevant regulations so that we have a preliminary understanding of the problem.Aiming at the current situation of the judiciary,the author mainly analyzes the focus issues through case analysis.The third part is to extract the problems existing in the status quo of legislation and justice,and analyze the reasons for the problems.Among them,the main problems in the legislation are the difficulty in applying the law when the husband and wife are not in agreement,whether the meaning of "contribution amount" includes the issue of "equity",and whether the "period of consent" applies in the division of equity.There are five main problems in the judiciary: application of other shareholders’ consent and pre-emptive rights,the extremes of the method of splitting the equity under the same lawsuit,whether the shareholder has the right to transfer the rights without authorization,the interests of non-shareholders,Evaluation of equity value.The fourth part is mainly theoretical analysis.First of all,the author defines the criteria for the recognition of common ownership of shares,and briefly introduces the common situation.However,by summarizing the causes of the problem,the author finds that the judge has a wrong thinking in the trial of the case,that is,he believes that the content of shareholding is the prerequisite for determining the method of shareholding division.Furthermore,an overly absolute division of the equity division method was made.Either only the division of the entire content of the equity is decided,or only the division of the equity value is judged.This kind of referee thinking is too rigid,and it is difficult to respond to the development of society and the parties’ demands.In this regard,the author analyzes the viewpoints of various common contents of shares,and believes that although the above-mentioned viewpoints have some reasonableness,they are not the best way to solve the problem.The author believes that it is possible to start from the perspective of the husband and wife’s common property system and introduce the theory of the potential sharing of husband and wife property as the theoretical basis for the equity division.The fifth chapter mainly proposes solutions.In view of the problems in the legislation,the author believes that the marriage law and the company law can be connected by legal interpretation.It is believed that Article 16 of the Interpretation of the Marriage Law can be applied in the event of inconsistency between the husband and wife.Equity "and the implied presumption of the" right to consent "of the company’s regulations should be complied with in the divorce equity split.Aiming at the problems existing in the judiciary,the author will solve them one by one.Among them,regarding the extreme issue of the method of splitting the equity under the same lawsuit,the author believes that the split of equity is itself a matter of flexibility and can take into account the interests of all parties.Regarding the timing of application of consent and preemptive right,the author believes that the judge should ask other shareholders if they agree,and apply the preemptive right when they agree.Regarding the evaluation of equity value,the author believes that the date on which the husband and wife divorce judgment takes effect shall be the node of the equity value evaluation,and the equity value shall be determined according to the market law.Regarding the validity of one party’s unauthorized transfer of equity,the author believes that the party holding the equity as the legal subject of the equity transfer is effective as long as the equity transfer agreement does not violate the contract law.Regarding the protection of the interests of non-shareholders,the author believes that the husband and wife property reporting system in Taiwan,China should be used to protect the non-shareholder’s right to know,and at the same time,the presumption of evidence can be applied to protect the non-shareholder’s litigation interests. |
