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

The equity transfer of limited liability company is an important economic activity in the running process of the company,which can not only promote the flow of shareholders but also optimize the industrial resources,which is related to the stability of the company’s personnel compatibility and capital compatibility.In 2013,the Company Law was revised and the subscribed capital system was established.Shareholders no longer need to go through the legal capital verification procedure,which stimulated the entrepreneurial enthusiasm of investors to a certain extent.However,disputes over equity transfer if the investment is not in place are also increasingly rampant.According to the statistical data of judgment documents,disputes over transfer of defective shares are characterized by universality and complexity.Although the judicial interpretation and guidance issued by the Supreme People’s Court to deal with transfer of defective shares have played a certain regulatory role,However,regarding the definition scope of defective equity,the effect of defective equity transfer contract,the recognition of the bona fide transferee of defective equity and the responsibility for the transfer of defective equity,the laws in our country do not provide clearly,which leads to a great divergence in the thinking and result of judgment in judicial practice.This paper starts with the data statistics of cases concerning defective equity transfer disputes of limited liability companies in judicial practice,sorts out the main disputes concerning defective equity transfer issues in judicial practice,focuses on the analysis of the judgment thinking of each court in dealing with such cases,and analyzes the reasons for the differences in judicial judgment by combining the jurisprudential basis and legal articles.On this basis,the author puts forward his own suggestions to solve the problem of defective equity transfer.As for the definition of the scope of defective equity,it is certain that the withdrawal of capital contribution belongs to the scope of defective equity,but the equity transferred without a period of capital contribution does not belong to defective equity.The law clearly entrusts the shareholders with the term of interest,which cannot be inconsistent with the original intention of the subscription system.At the same time,the transferability of defective equity is affirmed,and the defective investment does not affect the qualification of shareholders.The defective equity transfer contract should be effective,and if the assignee is good faith,it should be granted certain cancellation right.However,different from civil contracts,commercial contracts pay attention to the efficiency and stability of transactions,and the exercise of cancellation right should be appropriately restricted.The identification of the bona fide transferee of defective equity should be based on factors such as whether reasonable consideration has been paid and whether reasonable duty of care has been fulfilled.The identification criteria of bona fide transferee should be unified and should not be too strict or loose,and some relief should be given to the bona fide transferee of defective equity.When it comes to the issue of liability,the corresponding liability should be borne according to the subjective state of the parties.Therefore,both the assignee and the transferee are suitable liability subjects.In order to better protect the interests of the company’s creditors,the subject of liability for the transfer of defective equity should be appropriately expanded,and the specific form of liability should be clarified.The problem of defective equity transfer should be reflected on the reasons from the perspective of capital contribution to curb the occurrence of defective equity transfer disputes from the source.