On The Effectiveness Of The Shareholder's Rights Transfer Of LLC Basing On The Balance Of Interests

Effectiveness of shareholder's rights transfer of LLC is the change in ownership of shareholder's rights between transferor and transferee, the former losses shareholder's rights, the latter acquires the shareholder's right and qualification. The problem of our current judicial practice should be resolved urgently: the transfer of property rights and other civil rights, creditor's rights and intellectual property is different, many shareholder's rights transfer relevant shareholders involved in the limited liability company, in addition to the shareholder's rights transfer of both parties, but also there are other target company, shareholders and other external third party, the legitimate interests of the body- such as consent, right of first refusal and acquired in good faith interests- are likely to have a material impact on the equity transfer effectiveness. Therefore, how the interests of those subjects accurately measure and reasonable sort, there are serious controversy, which led to many judicial confusion.This thesis focus on the legal norms and judicial practice of effectiveness of shareholder's rights transfer of China, basing on the perspective of balance of multi-interests, using the empirical and comparative studies methods, exploring the legitimate rights and interests of different subjects in the transfer of ownership of the order and the impact effect on the transfer of equity construct logic self consistent and fit the actual limited liability company stockholder's rights transfer effect of implementation of the legal requirements for the system.In this thesis, the effectiveness of shareholder's rights transfer of LLC are divided into two types: general elements and special elements:General elements of realization of the effectiveness of the shareholder's rights transfer is refers to any form of equity transfer shall have effect the realization of elements, the concrete content includes the entry into force of the shareholder's rights transfer contract and fulfill the two, is the direct embodiment of the interests of both parties of shareholder's rights transfer effect.On the one hand, the parties shall enter into a valid contract for the transfer of shareholder's right, that is consistent with the general provisions of the effective elements of the General Rules of the Civil Law and Contract Law the legal act and contract, among which the key is the mean real guarantee equity transfer, the true meaning of the parties is to transfer equity loan guarantee contract performance, so we should identify the effective, when the debtor fails to fulfill the repayment obligations, creditors may depend on the guarantee real right legal methods realize the creditor's rights.On the other hand, the parties shall fully perform the shareholder's rights transfer contract, the transferee shall pay the price to the transferor, the latter should transfer the shareholder's right to the former. If there is any defect in the transfer of the underlying shares of the shareholders, the transferor shall bear the corresponding legal liability to the company, other shareholders and the company creditors, and shall not affect the effectiveness of the transferee to obtain the shareholder's rights. And only after the notice to the target company by the transferor, the effectiveness of shareholder's right transfer could be achieved.Special elements of realization of the effectiveness of the shareholder's rights transfer, refers to the shareholder's rights transfer is likely to affect other subjects' legitimate rights and interests, such as the target company, its shareholders and the third person, the effectiveness of realization should meet special conditions.First, The target company agreed to shareholder's rights transfer. In the case of outside transfer, the third people's entry will certainly affect the company's shareholding structure, in order to maintain the unity of the existence of the limited liability company, It is necessary to use legal mechanism to prevent the adverse effects caused by the change of shareholders. This is the target company's consent right to the shareholder's rights transfer, which could effectively eliminate the endanger people into the company; ensure the company's internal stability and long-term development. All in all, only after the target company's agree, the effectiveness of outside transfer of shareholder's right could achieve.Second, the other shareholders of the target company giving up preemptive right. Outsider transfer of shareholder's right could also affect the interests of other shareholders of the target company, as leads to whom are not familiar with to the company, other shareholders are not able to ensure that the new shareholders to form a new trust relationship. By giving existing shareholders preemptive rights so that it can be in the same conditions priority to third party obtain the shareholder's right, not only have no damage to the interests of the transferor, but also maintain other shareholders' proportion interests. Therefore, to achieve the effectiveness of outside transfer of shareholder's right, other shareholders' giving up preemptive right is a necessary condition.Third, the third party have no legitimate interests in the subject shares. When the third party with the subject shares has legitimate interests, the effectiveness of the transfer contract between the transferor and the transferee should be hindered. For example, the transferor transfers in the same subject matter to the third party before the registration, the third party could obtain the subject shares through Bona Fide Acquisition. Instead, in the condition of dormant investment shareholder's right transfer, the dormant contributor couldn't void the effectiveness of transfer of shareholder's right between the dummy shareholder and third party.The significance of this thesis is theoretical and practical, from a point of view, it not only directly touched the property right ownership changes and property right transfer contract effective rule elements of the construction of integration, preemptive right, bona fide acquisition system and general system for limited liability company shareholder's rights transfer field specific application problems, and also covers company law specific problems, guarantee shareholder's right transfer, the defective shareholder's right transfer, dormant investment transfer. In the sense of practice, it deals the difficult problems in the judicial practice of our country as the starting point and the home to return to, study target working to solve this problem, for the effective development of the judicial practice of company law, protect the legitimate interests of the related subjects to provide a useful mirror effect.