Study On Defective Share Tranfer Of A Limited Libability Corporation

Contribution is the basest obligation of shareholders to company. Although the strict invest liability to shareholders have been ruled in national company legislation,in Practice,defective capital contribution is not infrequent behavior. The disputes resulted from the transfer of defective capital Contribution by the contributor , refer to the validity of stock right transfer and the determination of defective capital contribution liability after transfer, are not clearly ordered by the existing Company Law and judicial interpretation, and it can not reach a consensus in theory field, lead to all over the court's judgement is also varied, influence the credibility of judicial adjudication.Based on the general sense of the limited liability company,this paper trys to discuss the question of transfer of defective Stock right ,in order to solve the problems in practice. The introduction part of this paper draw the main issue to be discussed out through a case. The epilogue part sumed the all paper up. The straight matter is divided into three parts.First , The defective stock right overview. First of all,The author analyzes the material foundation of the defective stock rights formation, namely, defective capital contribution, and introduces briefly the types of defective stock rights. Secondly, the problem of the shareholders equality of the defective share is analyzed detailedly. If the shareholders possess the formal features, he maintain the shareholders equality, however, can't prevent his invest liability. Lastly, the author analyzed the transferability of the defective share. The essence of share transfer is the transfer of the shareholders equality, which not only indicate the shareholder's right, but also the shareholder's obligation. Therefore, the defective stock right can be transferred, the transferee generally adopt transferor's shareholders equality, burden the obligation and enjoy the right to company.Second, the transfer of the defective stock right is valid or invalid. First of all,The author analyzes the different theories about the validity of defective stock right transfer in theoretical field,ie Validity, Invalidity and Revocation. In the second place, after analyzing the merits and faults of all the theories, the author selected Revocation theory on basis of analysis by synthesis, ie if there are no civil ineffective element the transfer contract of the defective stock right is effective; But if the transferor cheats, the transferee did not know or should not have known the defect of the stock right, the transferee can claim revocation right to protect his interests. Finally, the author make some amendments to Revocation theory, so that it will become more accorded with the practical demands.Third, how to bear the burden after the transfer of the defective stock right. The part firstly introduce the different theories about the burden to bear after the transfer of the defective stock right, and then on basis of analysis and trade-off, the author holds that it is proper that the transferor and the transferee bear joint liability. Contribution is the legel obligation of shareholders, can not be exempted because of the transfer of the stock right. Even though transfer the shareholders equality in the way of stock right transfer, original shareholders also must guarantee the subsequent endorser carry out contribution obligation to company; If the transferee was in good faith, he can be exempted from liability by claiming revocation right, but the transferee did know or should have known the defect of the transfer shares,should bear liability. In the last place, the author analyzes specifically the share system of defective contribution responsibility, ie combine with every responsibility characteristic and different conditions of stock right transfer, affirm the responsibility share.