Research On The Transfer Of Defective Capital Contribution

Although the strict liability of capital contribution of the contributor is ruled in the legislation of many countries, in practice the behavior of the defective capital contribution often occurs. In the present law there is no definite regulation of the transfer of defective capital contribution; at the same time the theory also lays its emphasis upon the liability of the defective capital contributor. Therefore the article mainly discusses the problems of the transfer to defective capital contribution with the center of the limited liability corporation. Part â…  The formation of the defective capital contribution In this part the reasons of the defective capital contribution are introduced first. The author thinks that the existence of the defective capital contribution results the creation of the defective capital contribution, which is the material foundation of the transfer. According to different standards, it has many manifestations: not performing the liability and improperly performing the liability; the un-performing liability before or after the corporation establishment; the false contribution of cash or matter.Secondly the transfer contract of defective capital contribution is introduced. The author sums up the general procedure to sign a transfer contract to make out defective capital contribution can be found if the transferee is cautious. So the author draws the conclusion that transfer contract of defective capital contribution is the result of the partners' equation to their commercial interests.Part â…¡ The theories of the effects of transfer The author mainly analyzes the usual theories. Theoryâ… : No-effect. The theory insists the capital contribution is originally obtaining behavior and capital contribution to the corporation is the essential condition. The shareholder who has the defective capital contribution is not the certificated shareholder. So the transfer is not effective. The author thinks that absolutely seeking the substantial justice will neglect the requirements of the outward appearance of the commercial law to the public security of the dealing. Theoryâ…¡: Difference. The base of this theory is the legal capital system and the authority capital system. The author considers that the different capital system means different manner of the capital contribution. The contract is the base of capital contribution. Defective capital contribution is the problem happens during the performing the contract of buying the capital contribution. Theory â…¢:Revocation. This theory insists that the effecting factor is the fraud meaning of the buyer of the capital contribution. However the author insists the cautious transferee have enough opportunity to find the defective capital contribution. The transferor does not tell the defective capital contribution is not the legal reason of the right of revocation. Theory â…£: Validity. The author considers the formality has the function to make the public notice and reliance. It is the certain result of the commercial competition that the revocable right of the transferee is invalidity and the validity of the transfer contract has realistic meanings. Part â…¢ The Warranty of the transferor to defective capital contribution The transferor has the main liability to the creation of defective capital contribution. So the author insists that the transferor should lastly bear the warranty to his defective capital contribution. The warranty to the defective capital contribution is the implied promise of the transferor to the transferee. The warranty is a special liability for its object has particular quality and content.The warranty of right is mainly that when the corporation is canceled or the veil of the corporation is pierced, the transferor should be liable to the transferee because of the disappearance of capital contribution. It includes the warranty of the canceled registration of the corporation and the corporation which is pierced the veil.The warranty of matter is that the transferor should make it sure weather the capital c...