Research On The Effects Of Transfer Of Shares In Limited Company

Transfer of shares system of Limited Liability Company is an important part of limited liability companies'systems, and the problem of transfer of shares in the limited liability company is a hot and difficult problem in the judicial practice. Transfer of shares of Limited Liability Company not only involves the relations between the side of transfer of shares and buyer, but also involves the relations between the two parties and other shareholders, and it involves the relations between company and the third person outside the company. The judgment on effect of transfer of shares just about deals with and corresponds the complicated law relations. Under the balancing of interest idea in company law, this thesis studies the effect of transfer of shares in the limited liability company and the grounded theory with the synthetic measure of comparative analysis, moreover, this thesis analyzes the regulation of effect of transfer of shares and its jurisdictional dependence, then puts forward the appropriate system design of transfer of shares in close corporation to Chinese actuality in accordance with the relative legislation of developed countries. The whole thesis contains four chapters all together, except the preface and the conclusion.Chapter One is"The basic law problem of transfer of shares of limited liability company", distinguish the definition of"transfer of shares","transfer of contributor","transfer of shares","transfer of assets", effect of transfer of shares and contract of transfer of shares. Through the analysis of the above definitions it concludes that the name"transfer of contributor"is wrong, which is caused by the misunderstanding of the character of shares and legal consequence of"transfer of contributor"; the name of"transfer of shares"is identical with"transfer of shares". The author uses"transfer of shares"all over the whole article according to the new Cooperation Law. As to"transfer of assets", it is a different definition from"transfer of shares"at all:the former is the action of cooperation, and the later is the individual action of shareholder. The effect of shares and the effect of the contract of transfer of shares are different. There are differences in the scope, judge standard, contents, and start time of the two validities. During the process of transfer of shares, many subject execute several actions. The process of transfer of shares was in order and time, goes on in process, and only if complete all the processes, the transfer of shares could be valid completely. However, the fact is too complex, on the one side, the processes or procedures in various stages have intervals and cause different relations of right and liability, which need the protection of law; on the other side, it is fair and just not to judge the whole transfer of shares invalid when one of the process or procedure is uncompleted because of various reasons. Therefore, we could not judge the effect of transfer of shares simply by one standard. The author thinks it should be divided into three levels: it is valid between the transferor and transferee once the transfer of shares is valid. The transferee could ask the transferor to transfer shares, and the transferor could ask the transferee for shares capital;the transfer of shares becomes valid against cooperation after the registration of modification of stock ledger. The transferee could advocate its shareholder credential and enjoy the rights of shareholder, while this advocate should not resist against the third party. The transfer of shares is valid after registering the industrial and commercial modification the transferee obtain the whole shares.Chapter Two is"The effect of the transfer of shares contract". This chapter contains two parts, one is"the effect of the general transfer of shares contract", which discusses the following four topics. The first one is valid essence of the contract of transfer of shares. As a kind of contract, contract of transfer of shares has no substantial difference to other contracts on investigation of the contract, that is to say, the fundamental legal principle of investigation on the effect of contract could be applied to the investigation on the effect of contract of transfer of shares. Such as, whether or not the capacity of civil rights and conduct rights of subject possess, the object is legal, the expressive intension is true, which are all foundational factors to investigate the effect of the contract of the transfer of shares. The second one is effect to the effect of the transfer of shares contract regulated in Article 72 of the Cooperation Law. The author considers"the agreement of half shareholders"and the give-up of the priority preemption of the other shareholders are legal executive essence of effect of the transfer of shares contract, and the offensive action against this executive essence should belong to action of uncertain effect, it should be captured by other shareholders. Judging the contract of transfer of shares uncertain valid makes the contract of transfer of shares possible to be valid, other than certainly invalid on the one side; on the other side, it takes consideration of the benefits of other shareholders, and maintain the unity of cooperation. The third one is the effect to the contract of transfer of shares restricted by the charter. The Article 72 of new Cooperation law stipulates"which stipulated in the cooperation constitution, such provisions shall govern."which supplies the legal dependences for the restriction to transfer of shares contract, however, it does not regulate the effect of transfer of shares regulated in the charter. The author views that the effect regulated by the other articles should be analyzed in two aspects: self effect and outer effect. The self effect of the constitution is limited, and it must be restricted by peremptory provision and the principle of free transfer of shares. The premise of outer effect is its own effect, and that is the effect between parties who participate transfer of shares and only in the internal cooperation. The forth is the effect to the contract of transfer of shares caused by other agreements made by parties. The contract of transfer of shares signed by the parties who offense the regulations and the ones who are not shareholders should be valid. However, the other parts of the contract are still valid, and the transferor should assume the liability for breach the contract if he infringe on the special agreement. Part Two is"the effect of special contract of transfer of shares", it look forward its own standpoint about the following four kinds of contracts of transfer of shares: the effect of contract of transfer of shares with defective contribution to the investment,the effect of contract of transfer of shares with disclosed transfer, the effect of contract of transfer of shares which partly transfer the power of functions, the effect of contract of transfer of shares in the process of cooperation's dissolution.Chapter Three is the effect of registration of modification for stock ledger to the transfer of shares. The author argues that the registration of modification for stock ledger is the legal executive essence of effect for the transfer of shares. After the registration of modification for stock ledger, the transferee becomes the shareholders of cooperation who execute the rights of shareholder, however, the effect of this kind of rights is incomplete, because it should only advocate to other shareholders of the cooperation, otherwise to the third party.The influence of registration for Chapter Four is the modification of the industrial and commercial to transfer of rights of stock. The author agrees to the theory of effect of resistant. The effect of resistant is that cooperation exposes the modification of transfer of shares to public through register organ of cooperation and assumes that the public have known or should know these exposed messages. If after the contract of transfer of shares conclude and the rights of stock deliver the cooperation is hardly to handle the procedure of transfer of shares, the effect of contract and delivery of rights of shareholder are not be influenced, merely that both parties who deliver the rights of shareholder resist the third party by delivery contract or registration of modification for stock ledger.There are still various shortcomings, and this thesis only throw out a minnow to catch a whale in order to develop and enrich the studies on effect of transfer of shares, and guide the practice of Cooperation Law better.