Research On Legal Issues Of Defective Equity Transfer In Limited Liability Company

After the revision of China’s new company law,China has no requirements for the actual payment of the capital contribution of shareholders of limited liability companies.Therefore,the capital contribution of shareholders is becoming more and more non-standard,and some defective capital contribution behaviors of shareholders make the disputes of defective equity transfer increase day by day.At present,only the judicial interpretation（III）of the company law has some provisions on the legal issues of defective equity transfer,but the judicial interpretation needs to be further improved.Based on the method of summarizing the dispute focus of the judicial practice on this issue in the process of defective equity transfer,this paper analyzes the different judgments of the court on the dispute focus,and puts forward the problems in the process of defective equity transfer in combination with the principles of civil law and company law.These problems are not conducive to the development of equity transaction,so they need to be solved urgently.The text of this paper is mainly divided into four parts.Firstly,this paper believes that defective equity mainly refers to the equity generated by shareholders’ failure to abide by the agreement of capital contribution.Its types include: default of capital contribution,false capital contribution and withdrawal of capital contribution.Whether the defective equity can be transferred is the premise of this paper.This paper believes that based on the legal provisions and the stability of commercial transactions,there is no inevitable connection between the defective capital contribution and the acquisition of shareholder qualification,so we must recognize the transferability of the defective equity,but we must impose certain restrictions on the rights of the defective capital contribution shareholders.Secondly,after affirming the transferability of defective equity,we need to discuss its contract effectiveness.This paper believes that defective capital contribution will not naturally lead to the invalidity of defective equity transfer contract.When judging the effectiveness of defective equity transfer contract,we should not judge only by a single element,but in combination with the expression of intention of the parties.On the premise that the transferor performs the duty of care,if there are revocable reasons,the transferor can request to cancel the contract.Finally,with regard to the liability after the transfer of defective equity,this paper believes that in terms of liability,the transferor has the legal obligation of capital enrichment,and of course should bear the corresponding responsibility,while the malicious transferee should bear the responsibility based on the risk-taking principle,and the bona fide transferee does not need to bear the responsibility,but can not resist the creditor.Since the sponsors and directors are also the subject of responsibility,they should also bear certain responsibilities.On the basis of the above problems,we need to improve the protection of creditors and bona fide transferees.We should first regulate the capital contribution system of shareholders to avoid problems at the source,and then relieve the rights of bona fide transferees to ensure the best balance between efficiency and fairness,so as to improve the legal system of defective equity transfer and better promote the circulation of capital and the development of commercial transactions.