| With the reform of the registered capital system of the company,it has promoted the prosperity and economic development of the main business body of the company.However,it also brings a series of problems,especially the defects of capital contribution and the transfer of defective equity.In commercial practice,transfer of defective equity occurs in large numbers.Based on existing legal provisions and theoretical theories,this paper analyzes typical cases in practice and studies legal issues such as the effectiveness of transfer of defective equity and liability after transfer of limited liability companies.Clarify the transferability of defective shares,put forward the identification criteria of the effectiveness of the transfer of defective shares,analyze the content of liability after the transfer of defective shares,the subject,and put forward suggestions to strengthen the protection of the rights of the bona fide transferee.The text of this paper mainly includes four parts:The first part analyzes the typical cases of defective equity transfer of limited liability companies.Clarify the focus of disputes in the judicial practice of defective equity transfer disputes,leading to the legal issues to be studied in this paper,namely,the effectiveness of the transfer and how to assume the responsibility after the transfer.The second part studies the definition of defective equity and its transfer.In combination with the academic theoretical research on defective equity and the stipulations concerning defective equity in the Company Law,the concept of defective equity,especially in the narrow sense,and the transferability of defective equity are clarified,and the characteristics of defective equity transfer are analyzed to help define the transfer of defective equity.The third part studies the effect of defective equity transfer.This paper discusses and evaluates several theories about the validity of defective equity transfer in the academic circle,expounds the current judicial situation,puts forward the criterion for determining the validity of defective equity transfer,and holds that defective investment does not affect the acquisition of shareholder qualification and the validity of defective equity transfer.The fourth part studies the liability bearing after the transfer of defective equity.Discuss the content of liability after the transfer of defective equity,discuss and analyze several theories of liability bearing by both parties after the transfer of defective equity,clarify the transferor as the liability bearing subject,the transferee as the liability bearing subject under specific circumstances and the order of liability bearing by both parties,and emphasize the responsibility of sponsors,directors and senior executives for the enrichment of company capital.Finally,we strengthen the protection of the right of the bona fide assignee from three aspects: the right of claim,the right of recourse and the right of revocation. |
