Research On The Transfer Of Defect Of Capital Contribution In Limited Liability Company

Capital is the most important factor for the existence and operation of the company, It is not only the necessary condition for the company to obtain the independent personality, but also an important guarantee for the creditor to realize the creditor’s rights. Company capital originates from the investment behavior of the company sponsor. However, in practice, there are many defects of the shareholders’ investment, which affect the company’s capital stability and the protection of the creditor’s rights and interests. China’s "company law" and the judicial interpretation (Ⅲ)provide the company’s promoters shall bear the responsibility for the defects of the internal and external, but the responsibility for the subject of the subject of the equity transfer of capital contribution is not clear, and there are weak operational disadvantages, when solving this kind of problem in practice, the law is applicable to the "vacuum" state. As soon as possible to clarify the responsibility of the transfer of defective equity capital to assume the main body, to build a reasonable standard of responsibility for the system, is of great significance to regulate the judicial decision and solve the practical dispute.The first part of this paper starting from a typical case of judicial practice, through empirical research, combing the controversial points in the case, put forward several issues that the paper will focus on. In the second part, the author defines the different connotation of capital contribution flaw in different capital system, and analyzes the general types and special types of the existence of defective equity. The third part analysis of defective capital’s effect for the shareholder rights of both the transfer shareholders and assignee, focusing on analysis content of the shareholders rights’restrictions due to defective capital and whether those restriction reflect the right of assignee. The fourth part analyzes the flaws of capital stock for bear several important obligations, including the contribution and the other shareholders of the company shall bear the duty of disclosure, subject of capital contribution obligation, and the assignee should bear the obligation of capital contribution query or not, discussed the scope of the first paragraph of article eighteenth of the "judicial interpretation of company law" (Ⅲ)and discussed the determination standards of "good faith" of assignee. In the fifth part, through the identification of the main responsibility for the transfer of defective equity transfer, it provides some suggestions for the construction of the perfect responsibility system.Defective capital contribution and the transfer of equity is the two common commercial behavior in practice, there are more discussions about them in the theory and jurisprudence, but when the two have the association, due to the imperfect of laws and regulations, academic point of view is not uniform, resulting in it is very difficult to solve the related problem. Through carding a series of problems in the process of the transfer of defective equity, the author makes some suggestions on the improvement of the company law and the judicial practice.