Study On The Effect Of Defective Equity Transfer Contract Of Limited Liability Company’s Investment

In 2013,the Company Law was amended to change China’s company capital payment system from paid-in capital system to subscribed capital system,which improved investment efficiency and provided convenience for sponsors to set up companies.Equity transfer complies with the parties’ autonomy of will,conforms to the market voluntary retreat and retreat mechanism,can flow freely in the market,the capital contribution flaw equity also has the property of free circulation.But under subscribed system,subscribed still not of pay of full specified amount paid money,after the expiry of the grantor will be equity transfer,is bound to impact on equity transfer of the rights and duties of the parties,such as the transfer of the effectiveness of the contract,how will the as capital contribution flaw equity transfer related parties represent different meaning in the process of change,the rest of the capital contribution obligation borne by who,and how to allocate the responsibility of the creditors,etc.In order to solve the above problems,this paper is divided into four chapters and analyzed and discussed from the perspectives of legal theory,judicial cases,foreign legislation and so on.The first chapter introduced with three typical cases,and show different court on whether the flight of capital contribution can capital contribution flaw related regulations,the assignee shall apply to the transferee equity capital contribution flaw is not informed by claiming the processing standards chaos,cancel the contract and other issues to reveal the present judicial circle of capital contribution flaw equity transfer contract effectiveness of treatment,and in case of defects in the present legislation thinking,by the full text.The second chapter of this paper is to define the scope of capital contribution defects.This paper mainly studies the contract effectiveness and liability judgment rules of the transfer of capital contribution defective stock right.Therefore,only by first clarifying the scope of capital contribution defective stock right,can the applicable objects of relevant rules be clarified.The author first has been clear about the current scope of capital contribution flaw equity norms defects,and combining with the case,theory show the present judicial practice and academic scholars have different attitude to the scope of the equity capital contribution flaw,raises the author’s point of view of capital contribution flaw category,think smoke escape capital contribution shall be on capital contribution flaw equity related processing rules shall apply.The third chapter as a main part of this article,the author first through to the current specification and local court case study found that in the absence of law and judicial interpretation level under the condition of uniform,around the comments of the Supreme Court issued its own,but the processing opinion different provinces point out,and not to have the comprehensive unified effect throughout the province,the processing of different courts in the province remain very different results.However,through the study of academic theories,the author finds that the four theories of contract validity judgment,namely absolutely invalid theory,absolutely valid theory,compromise theory and revocable theory,all have problems contrary to the current legislative spirit and cannot be completely applied.Therefore,the author from the prudent attention obligation,equity transfer,the meaning of the said defect two levels,is under the different types of equity transfer contract effectiveness are analyzed,and in the case of the transferee shall enjoy the right of revocation of the limitation on the scheduled period,in guarantee under the condition of commercial transaction efficiency,as far as possible to arrange the balance of the rights and obligations of both parties.The fourth chapter of this paper,as the continuation of the third chapter,is also an indispensable chapter.In this part,the author focuses on analyzing which subject should bear the responsibility caused by the capital contribution defects after the validity of the equity transfer contract is determined.Based on the domestic theory,the legislation outside of reflection and reference,the author assumes responsibility divided into other shareholders to the company for breach of contract,for the company’s investment supplement responsibility,the responsibility for the company’s creditors and assignor’s liability for guarantee of assignee’s defects,respectively demonstrate different types of responsibility to produce the basis and responsibility main body,and the responsibility distribution between the main responsibility.As for the liability for breach of contract to other shareholders of the company,it shall be borne by the equity transferor who has the status of promoter.In the case that the contract is null and void,the assignee need not be liable for the allocation of the liability for making up the contribution of the company.In the case that the contract is valid,the assignee shall be deemed to have the intention of guaranteeing the contribution of the company,so it shall bear the corresponding liability for making up the contribution of the company.The liability to the creditor of the company is that the assignee need not bear the liability when the contract is invalid,while the assignee and the assignee jointly bear the liability when the contract is valid,and the liability shall not be against the creditor.In the part of guarantee liability for defects,the assignee can freely choose to apply the guarantee liability for defects or exercise the cancellation right if it has the cancellation right,but it cannot claim at the same time.