Research On The Transfer Contract Of Defective Shares In Limited Company

The transfer of defective shares in limited liability company is a hot and difficult issue in theory and practice. In China, cases of shareholders invested defects are common, manifested as false investment and capital flight. Equity defects not only affect the exercise of the rights of shareholders in the company, and affect the company, other shareholders and the creditors of the company as well. The relevant provisions of the defective equity in China's newly revised "Company Law" is obviously insufficient. Moreover, the effect of defective equity transfer contract, and accountability of the parties after the transfer are the matters of controversy. Learning from other countries and regions of the legislation and doctrine and on the basis of company practice, this paper related closely with "Company Law", "Contract Law" and other regulations, to attempt to further improve defective equity transfer system in the limited liability company.The basic structure of this paper is as follows:Starting from the capital system, the first chapter first analyses three major capital system of company and the significance of investment of the shareholders, and classifys the form of funding defects (false investment and capital flight). Second, it discusses whether the defect eligible investor shareholders have ability to obtain his or her status by defining the eligibility criteria for obtaining the shareholders (in the form elements and real elements),and then concludes the rights of shareholders of the defect should be funded by certain restrictions.The second chapter introduces the share transfer contract should comply with the provisions of contract law, but also comply with the provisions of company law. In addition to the characteristics of general contract of the share transfer, transfer of the defective capital contract also has some aspect that complex in acting and larger risks in legal responsibility. Finally, the author analyses the nature of the equity defects transfer contract, that is using meaning doctrine in the case of internal transfer, while in the company's external transfer cases, claims of formalism should be used.The third chapter evaluates all kinds of the academic perspectives on the existent defective equity transfer contract firstly; followed by stock transfer is the inherent right of shareholders, to maintain effective in defective equity transfer contract is much more corresponding with the essence of company law from the perspective of maintaining trading order and balance the interests of the participator in company.Considering the object as the standard liability, the fourth chapter discusses the civil liability of defective funding shareholders on company, full capital investment shareholders and creditors of company. First, on the basis of the various academic point of view on whether the assignee shoulder liability or not, the paper proposes transferee shall shoulder jointly and severally liable. Second, in accordance with company law, the Articles of Association and founder of the agreement, flaw shareholder shall shoulder full funding liability for other Shareholders. Again, the flaw shareholder is responsible for special civil liability of capital of the company's commitment to fulfilling the responsibility in accordance with the Company Law. Finally the paper analyses the theory of the flaw shareholder's responsibility on the creditors.