Determination Of The Validity Of A Transfer Of Equity By A Shareholding Spouse

The recognition and treatment of married couples has been debated between family law and commercial law,but with the introduction of the Civil Code,disputes and conflicts arising from the ’misrepresentation’ of married couples’ surnames have become apparent.On the one hand,Article 1062 and Article 1063 of the Civil Code clearly enumerate the scope of the common property of the spouses,and the equity shares are not excluded from the common property of the spouses,i.e.,they should be regarded as the common property of the spouses;On the other hand,Article 32 of the Company Law provides that commercial law tends to respect the external appearance of the business registration of the shareholding or the consensual identification of the shareholder,and that if the shareholding is registered in the name of one of the spouses,it is not possible to break through the commercial registration and divide the shareholding acquired during the marriage directly as joint property of the spouses.Based on the conflicting intentions and provisions of the Civil Code’s Marriage Act and commercial laws such as the Companies Act,the results of practical decisions on the unilateral disposal of equity by the shareholding spouse,as the commercial registered owner of the equity,without the consent of the spouse have shown a wide range of outcomes.At the same time,it is difficult to reach a consensus on this issue in academic circles.This thesis is the subject of this study.In this article,we have searched through the cases to sort out the relevant phenomena in judicial practice,summarise the controversial points and analyse the causes.The author believes that there are two main points of contention,namely,how to define the nature of the transfer of equity by the shareholding spouse and whether the equity acquired during the marriage can be considered as the joint property of the spouses.The analysis of the causes is based on three aspects: the existence of a functional conflict between the company and the marriage,the existence of a valueoriented conflict between the company law and the marriage law,and the conflicting value evaluation of the choice of law by the judicial judges.Based on the analysis of the causes,I will focus on the examination of the actuality and contingency of whether the equity interest acquired during marriage should be recognized as the common property of the spouses,which is the basis for evaluating the transfer of equity interest by one of the spouses and the remedy path.The author intends to start with the analysis of the actuality of the current legislation on the joint ownership system and analyse the lack of institutions and research on the joint ownership system in China at present.The nature of equity,the author believes that equity is an independent civil right and can be shared.The analysis of the current conflict between the common equity of husband and wife in commercial law is mainly from the perspective of the personhood of the limited liability company and the common equity based on the relationship between husband and wife.Both spouses have equal rights to dispose of the common property based on the legal property system in China,and the unilateral transfer of equity by the shareholding spouse should not be considered as a right to dispose of it.At the same time,equity transactions with third parties who are not subjects of the marriage should first of all follow the external behavioural representation into the commercial behaviour evaluation system.The act does not conform to the scope of the exercise of domestic agency and does not comply with the statutory types,constituent elements and tripartite structure of the apparent agency.The common system of marital income is the legal property system in China,based on which both parties have equal rights to claim the common property,including the right to dispose of it.The restraint on the public party’s right to dispose is an expression of the non-public party’s right to dispose,and both spouses must agree on the disposition of the shareholding,otherwise it constitutes a disposition without authority.The way forward when discussing unauthorised disposals by a shareholding spouse is discussed from both an external and an internal perspective.Externally,it is necessary to consider whether a third party who is not a subject of the marriage is acting in good faith,and if the appropriate conditions are met,the equity can be acquired through the good faith acquisition regime.However,"good faith" in this context is different from the general situation and the criteria should be context-specific,with the identity of the transferee being defined in the adjudication process.If there is no special relationship between the transferee and the public party,it is presumed to be in good faith;if there is a special relationship between the transferee and the public party,the standard for determining good faith should be raised and the burden of examination and proof should be on the transferee.Internally,if the spouses are still married,they may request a marital division of property;if the spouses are divorced,they may request the judicial referee to make a decision with a tendentious division.