| Equity is different from other rights because of its nature and characteristics. As economic exchanges in society become more frequent, equity transfer of Limited Liability Company is not uncommon; the legal issues involved in the transfer therefore draw increasingly attention of scholars. In the process of equity transfer, register in the record of shareholders is not an element of effectiveness but an element of antagonism, thus double element of antagonism is applied in the equity transfer. In Germany, when an equity transfer occurs, it might also result in a problem that someone who has no right to dispose the equity transfers it to a third party. And this raises new issues for the company law, namely whether the bona fide acquisition system in traditional civil law can be applied to the acquisition of equity. For a long time scholars in our country hold controversial views on this subject. However in practice transferee in good faith needs to be protected. The bona fide acquisition system that originated from Germanic law has two core elements; one is the basis of right appearance, second is the good faith of the transferee. This first one is what acquisition of equity lacks. If one expects to establish a system of acquisition of equity in good faith, the basis of right appearance must be artificially constructed. In regard to this issue, Chinese Supreme Court issued the provision stating that the basis of right appearance of equity is the industrial and commercial registration. In Germany, "Law for the Modernisation of the German Limited Liability Company Law and the Prevention of Misuse" was passed in 2008; and Bona Fide Acquisition of equity was first introduced. The systems of Bona Fide Acquisition of equity between the two countries have different elements. Despite the introduction of ground-breaking system of acquisition of equity in good faith, there are still some debatable issues, among which is mainly the issue of the construction of the basis of right appearance. |
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