The Discourse Of Limited Liability Company Capital Contribution Flaw Equity Transfer

On December 28, 2013, People’s Republic of China company law amendment was passed,the amendment mainly modified the registered capital system of company, the most notable change is to cancel the legal minimum amount of registered capital, which makes the registered capital of a limited liability company in installments, completely change to the paid-in capital.This reform is convenient for the establishment of the company, but the company law cancel the legal minimum amount of registered capital, without the compulsory intervention in the paid- in capital, combined with the social credit system in our country is still not perfect,commercial frauds occurred frequently,which is bound to make the capital contribution flaw increase.At present, in our country fully subscribed capital system, if capital contribution flaw exists?If it exists, how to affirm the capital contribution flaw? According to the draft of the 2013 company law, the amount of capital contribution of all shareholders are no longer registered on the commercial registration, so in the external equity transfer, under the condition of information asymmetric,it’s hard to grasp the capital contribution the third party.Hiding capital contribution flaw,how to identify the effectiveness of the equity transfer contract.According to the draft of the company law judicial interpretation four, capital contribution flaw equity transfer contract is a kind of voidable contract, the bona fide third party has the right to cancel the contract because of fraud and unfair, but the transfer of capital contribution contract flaw is different from common civil contract, civil law on fraud and unfair, whether also applies to the capital contribution flaw transfer contract.In 2013, the company law only to change the company capital system, the original company law provisions on the civil liability of capital contribution flaw are still available.How to bear responsibility after the transfer of the capital contribution flaw.In practice,since capital contribution flaw often occurs in the limited liability company, this paper will combine 2013 company law and the draft of the company law judicial interpretation of four,to investigate the above problems in the limited liability company.In this paper, besides introduction and conclusion is divided into four chapters:The first chapter mainly discusses the meaning of capital contribution flaw and the qualification of the shareholders under the capital contribution flaw. First of all, it discusses the meaning of capital contribution flaw, this paper identified the defective capital contribution is the narrowed meaning. Secondly,affirms the shareholders are still obliged to make its respective capital contribution in our country present fully subscribed capital system. Finally, discusses the qualification of shareholders of capital contribution flaw shareholders, affirmed the contribution is not qualify as shareholders,concluded that shareholders have the qualification of shareholders.The second chapter, discusses the issues how to exercise the rights of shareholders. First, illustrate the nature the rights of shareholders is a comprehensive right, and points out that the basic classification of the rights of shareholders are divided into self-right and common right. Then points out the shareholders’ right limits of the capital contribution flaw,explain the reason of the restriction on capital contribution flaw shareholders exercise their powers and the scope of the restrictions concludes that main restrict property rights of shareholders. Finally, analysis that after the transfer of capital contribution flaw,the rights of the assignee.The third chapter, demonstrates the specific effect of capital contribution flaw equity transfer contract. Firstly, discusses the legal characteristics of equity transfer, the transfer of equity changes the shareholder status,transfer the rights and obligations in essence. Secondly, demonstrates the validity of the contract of the transfer of capital contribution flaw,analysis the specific practice of related theories and judicial practice, and confirms the transfer of capital contribution flaw contract is a kind of voidable contract. Finally, analysis the specific situation of capital contribution flaw transfer contract.The fourth chapter,analyzes the problem of bear civil liability after the transfer of the capital contribution flaw.Including.Including the responsibility to other observant shareholders,to the company,to the company’s creditors,and the subsequent liabilities of the transferor and the transferee,and the problem of the limitations.