Research On The Issue Of Unilateral Disposition Of Equity Under The Name Of Husband And Wife

During the marriage,it is not uncommon for a couple to invest in a limited liability company with the couple’s common property.However,according to current legal provisions and practice,only one of the spouses is often registered as a shareholder.Therefore,when the registered party transfers the equity interest registered in his or her name to a third party without the consent of his or her spouse,the spouse often considers the unilateral transfer of the equity interest to be a disposition without authority and therefore sues for the invalidity of the equity transfer agreement on various grounds.However,in judicial practice,the courts have rendered mixed results in such cases,which is confusing.After an empirical study of116 judgments involving disputes over the unilateral disposition of equity by a husband and wife,we found that the main points of contention by sorting through the relevant cases are:firstly,whether the equity is the common property of the husband and wife.Secondly,whether the unilateral disposal of equity interests in the name of a husband and wife is a disposition without authority.Thirdly,whether the relevant provisions of the actual contributor regime can be applied.Fourthly,whether the share transfer agreement signed by the spouses unilaterally is valid.In judicial practice,some courts have held that the shareholder has the right to dispose of the shares and therefore the agreement is valid,while some courts have held that the shareholder’s transfer of equity is a disposition without right,but apply the bona fide acquisition system to determine the validity of the share transfer agreement.In fact,the fundamental reason for the divergence of views is that the court in the joint property of the husband and wife to contribute to the limited liability company equity belongs to the joint property of the husband and wife on this important issue identified different.First of all,from a purely academic point of view to discuss whether the equity for the common husband and wife,inevitably inevitable to the definition of the legal properties of equity,but the scholars of various schools of thought on this,so far there is no conclusion.Secondly,there is a difference between the provisions of the Civil Code on the scope and treatment of the common property of husband and wife and the Company Law on the rules of transfer of equity in limited liability companies.Thirdly,some scholars have suggested that a joint registration system for shareholdings could be established in an attempt to make the "shareholdings" of non-registered parties public so that they can be used against third parties.However,based on the efficiency of the company’s decision-making and the maintenance of the trust relationship between shareholders of the limited liability company,the joint registration approach is currently not desirable.Finally,in judicial practice,some courts have treated the non-shareholder as an invisible shareholder,but the non-shareholder is not exactly the same as the invisible shareholder,and the relevant provisions of the beneficial owner regime do not resolve the important issue of whether the non-registered party is entitled to equity.Some scholars have put forward the view of equity dichotomy,equity interests are divided into property interests and personal interests.Such a classification can distinguish the property interest from the personal interest in equity and effectively maintain the personal nature of the limited liability company.In addition,in order to balance the rights and interests of the shareholder and his or her spouse,a common property management system can be established,and the transfer of equity interests can be specifically regulated to protect the legitimate rights and interests of the non-managing party,taking into account relevant overseas legislative experience.Moreover,the equity value appraisal mechanism should be improved,with the consent of both spouses being the first priority,and the appraisal by professional institutions being the main focus,supplemented by factors such as cash flow.When a shareholding party deals with a third party in malicious collusion,his or her spouse can sue the court to determine that the equity transfer agreement is invalid on the grounds of malicious collusion.When the spouse of the transferor is unable to determine that the parties have colluded in bad faith in the transaction,his or her spouse may also protect legitimate rights and interests by exercising the right of revocation if there are revocable circumstances on the part of the shareholder.