Study On The Shares Transfer Agreement Signed By Unauthorized Persons

The shares in listed companies and the non-registered stocks in unlisted publiccompanies have their own special character because of the negotiability. So the sharestransfer in this paper just focuses on the shares in limited liability companies, alongwith the registered shares in unlisted public companies.The behavior of the shares transfer means the previous shareholders of thecompanies could transfer their equities to the others, and such civil juristic act once ineffective will let the others become the shareholders.It is common that the shareholders dispose their shares through the sharestransfer. The Company Law of PRC regulates that the shareholders have the right totransfer all or part of their shares via the legal form. However, if the unauthorizedpersons transfer the other shareholders’shares via the shares transfer agreement, thenwhether the Article51in the Contract Law would apply in this situation is unclear. Inother words, the effectiveness of the shares transfer agreement should depend on thejuristic act of real right, such as the delivery or registration. How many declarations ofwill are there in one shares transfer agreement, including the both juristic act of realright and of creditor’s rights, or just one of them? If the agreement includes the bothabove declarations of will, then does this mean the two declarations are separate? Ifthe answer is yes, then how we divide these two declarations of well? The paper willtry to analysis the above questions from the perspective of both legal theorists and practitioners, also along with the transference of real right in the circumstance ofArticle15in Property Law of PRC and Article3of the Interpretation of the SupremePeople’s Court on Issues Relevant to the Application of the Contract Law. Then afterall, try to give a preliminary answer to whether the shares transfer agreement signedby unauthorized persons could apply Article51in the Contract Law.The First Chapter discusses the theorists’ disputes in relation to the applicablescope of Article51in the Contact Law. This first part introduces such kind of thedisputes and the theorists’ acknowledge of the effectiveness of the share transferagreement signed by unauthorized persons. The second part summarizes the attitudeson the above same issues from the practitioners’ understanding. Then the third partwill focus on the application of Article51in the Contract Law in the above situation.The Second Chapter points out that there are two different declarations of well inthe share transfer agreement, including the both juristic act of real right and ofcreditor’s rights, and the argumentation are as follows. Firstly, the nature of equity isanalyzed, and the author holds the opinion that the equity is a new type of the civilright which is similar to the creditor’s rights. Secondly, we discuss the three differenttheories in relating to alteration of right in legal actions. Then the same opinion isreached out by the three different theories that unanimous declaration of intention isthe essential factor in the transfer without the delivery or registration, and the sharetransfer definitely falls into this catalog.The Third Chapter follows the research path of the Second one, and furtherdiscusses the whether there is unauthorized disposition existing in the legal actions ofunanimous declaration of intention. Per the analysis of the difference of act ofdisposition and act of burden, the answer for the above issue is negative.The Forth Chapter is in the center of the separation of two declarations. If thereis no obvious separation between the two declarations of well relating to juristic act ofreal right and act of creditor’s rights, then both declarations will be null and void; orwe can figure out the separation between the two declarations once the juristic act ofreal right is invalid, the act of creditor’s rights is still in effective.This paper combing with Article15in Property Law of PRC and Article3of the Interpretation of the Supreme People’s Court on Issues Relevant to the Application ofthe Contract Law, concludes that the two declarations of well are separate in China.Finally, we reach a conclusion that not only the shares transfer agreement signed byunauthorized persons could still apply Article51in the Contract Law, but such kind ofthe application could also in the circumstance of the transfer of creditor’s rights,copyright, right to contract for management, easement, floating charge, and specialchattel mortgage which are all the transfer without delivery or registration, and allincludes both two declarations of well.