The Study Of Division Of Stock Rights In Divorce Litigation

In recent years, along with the economic development, there are more and more types of community property, and the stock rights is gradually brought into the scope of property, so that there are various of dissension in divorce litigation. As common property, the division of stock rights can result in stock rights transfer. There are many reasons of stock rights transfer, however, people are always concentrating on stock rights transfer in limited liability company. There are not much discussion about special stock rights transfer, such as in the case of divorce ,inheritance, etc. The provision 35 of China former <>just stipulates paid stock rights transfer, not stipulates how to deal with special occasions, so that there are many troubles in practice.The new <>has established inheritance of qualification of shareholders, which means inheritor can inherits the stock rights, getting the qualification of shareholders, not only the stocks. However, the new <>dose not solve stock rights partition in divorce litigation. Though that the new <> does not stipulate the other special stock rights transfer, but the provision 72 of new <>stipulates process of shareholder's consent, which can not only protect free transfer of stock rights, but also protect personnel cooperation of limited liability company, so that this term can be used to solve problems in special stock transfer. In my opinion, division of stock rights in divorce can apply to this process in provision 72, but litigation particularity of divorce litigation should be considered.To deal with problems in trial practice, the provision 16 of the second Judicial Interpretation of Marriage Law , which is implemented by Supreme People's Court in 1st April, 2004, stipulates how to divide common property that contributes in limited liability company in one party's name, but the other party is not the company's shareholder. This provision can only solve the case that the couple has consented, and the People's Court just need to do some work profoundly. If the couple hasn't consented, this provision doesn't work, so that we have to solve this problem through other means, which is the key point to discuss in this paper.Because stock rights is special, whether stock rights can be regarded as couple's common property, whether it can be divided, and how to divide, which are bone of contention and difficult problems in trial. If the property that contributes to company is community property, the stock rights should be regarded as community property, and the stock rights is owned by the couple. The party who has shareholder's identity is actually on behalf of the couple's common interests. In the case of divorce litigation, the party who has shareholder's identity has right to transfer stock rights to protect the company's interests, which is request of company maintain principle. However, the other party without shareholder's identity also should protect one's right. But the present <>hasn't provisions about this aspect.Compared with general community property, stock rights has special characteristics. Division of stock rights is conflict with community property system for that division and transfer of stock rights are regulated by <>. And according to traditional theory of company's social responsibility, as a commercial organize, the essential purpose of company is to satisfy the shareholder's interest, and the company must protect the shareholder's rights to maintain stabilization and normal running of the company. While community property and division of property are regulated by <> which regulates personnel relationship and property relationship. And family is cell of society, and marriage is base of a family. If dissension arouse by marriage can not be solved legally in time, it will result in divorce and family dissension, which will affect people's work and life, and enhance instability of society which is not good for the development of social harmoniousness. So when dealing with stock rights disputes in Limited Liability Company, we can not neglect spouse's property. We should assort with relation between shareholders and spouse, so that the <> and the <> can be joined better, and all parties' interests will be protected to find a better way to solve this kind problem finally.Hereinafter, I will study the present provisions and the ways in practical trial, and the regulations in other countries and areas to analyse and discuss the division of stock rights in divorce litigation. I will propose difficulties and ways of division in judicial practice. On one hand, we should improve process of stock rights division in judicial practice. On one hand, we should improve process of stock rights division to enhance judicial practice process; on the other hand, we should set up perfect stock rights evaluation system, confirm the function of the court. I hope what I have written will be helpful to deal with this kind problems.