| Reform and opening-up and the development of market economy to create a good environment for investment,especially the change of company law in2014,the registered capital contributed system into a subscription system encourages people to invest their own assets in business activities.Property held by people has expanded from houses,cars,savings to new forms of property such as equity and intellectual property.Therefore,in the divorce proceedings,more and more couples are involved in the division of equity.However,the legislation of Our country does not make clear whether the equity is the common property of husband and wife,nor does it make clear provisions on how to divide the equity in the case of disagreement between husband and wife.In addition,"Company Law" and "Civil Code" marriage and family there is a lack of smooth connection,there is also a lack of clear guidance on equity valuation and other issues,which brings difficulties to judicial trials.Because the third party is involved,it is more difficult to split the equity of the limited liability company under the name of one spouse。This paper uses literature research method,empirical research method and other research methods to demonstrate the legal issues of equity division of limited liability companies under the name of one party in China,and puts forward corresponding suggestions from legislative and judicial perspectives in order to improve the system of joint equity division,which is beneficial to realize judicial justice.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is defines the equity of the limited liability company under the name of one spouse,and analyzes the current status of division from the legislative and judicial perspectives.In terms of definition,from the equity registration,capital contribution,the Angle of the stake type clear that the equity division of the limited liability company under the name of one spouse refers to in divorce proceedings,duration of the common property of or obtained by means of inheriting the gift only registered in a husband or wife’s name of a one-person limited liability company of equity.In terms of analysis of the current situation,China’s legislation does not specify whether equity is the common property,leaving uncertainty for judicial practice.In terms of equity division,the legislation does not provide for the situation that there is no consensus,so the provisions are one-sidedness.In addition,the company Law and the Civil Code of marriage and Family are inconsistent in terms of the contents of transfer,the time and way of consent,and the articles of association,leading to conflicts in application.In terms of judicial status,from the perspective of geographical distribution,it is mainly concentrated in first-tier economically developed cities and provinces such as Beijing and Shanghai.From the perspective of equity registration,only one party registered in the name of equity accounted for more than 90%.From the perspective of the distribution of court levels,the final judgment of marital equity disputes is mainly made by the basic court.Compared with the overall "civil cases",the appeal rate of marital equity disputes is far higher than that of ordinary civil cases.The second part is through typical cases analysis the main difficultiese on quity division of limited liability company under the name of one spouse and analyzes the relevant legal issues.First,equity ownership is not clear;Second,it is not clear how to divide the equity in the case of unsuccessful negotiation between husband and wife;Third,it is difficult to identify equity value;Fourth,the frequent use of the court to deal with other cases,resulting in the transfer of assets,equity value fluctuations and other new problems;Fifth,the spouse of non-shareholder is in a weak position to provide proof,and it is difficult to provide proof,so it is unfair to assume responsibility.The third part is to analyze the principle of equity division of limited liability company under the name of one spouse in divorce proceedings.First,we should give priority to consultation and fully respect the free will of the couple.Second,we should adhere to the principle of equality and not deprive a non-shareholding party of its legitimate rights and interests to become a shareholder.Third,adhere to the principle of caring for the vulnerable party,in the burden of proof and other aspects of the vulnerable party to give appropriate preference;Fourth,adhere to the principle of protecting the interests of the third party.The fourth part is puts forward specific suggestions on the equity division of limited liability company under the name of one spouse in divorce proceedings.First,we should establish the common ownership system and make it clear that the equity is the common property of husband and wife.The second is to clarify the method of equity division when the husband and wife fail to negotiate,and to construct the compulsory equity division procedure of the husband and wife at the legislative level;The third is to construct a sound judicial evaluation mechanism of equity value from the selection of evaluation institutions and the determination of evaluation time points;The Fourth is prudent use of other cases;The Fifth is improve the protection mechanism of the rights and interests of non-shareholding parties,clarify the obligation to inform the husband and wife of jointly owned property in legislation,and improve the burden of proof of the spouse of non-shareholding parties. |
