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The Study On The Effectiveness Of Share Transfer In The Limited Liability Company

Posted on:2017-04-29Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhouFull Text:PDF
GTID:2296330482989090Subject:Civil and Commercial Law
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Equity transfer, it occurs in the civil and commercial subjects frequently. But the relevant system is not perfect led to the disputes of equity transfer increase. The focus of the dispute is the determination of the effectiveness of the transfer of shares. This article based on the latest example of cases by using the latest on-line Chinese referee instruments net, combined with the referee instruments sharing platform, and some typical cases, in order to find the focus of contradictions, and provide solutions to this problem. During the research, I found that many courts does not distinguish between the effect of share transfer and the effectiveness of equity transfer agreement. Therefore, I started this article from the distinction between that. I think equity transfer agreement is the basis and reasons for the validity of the equity transfer. Then I found it is the most common reason that the equity transfer agreement does not take effect, because of the inconsistent or not the intention of the parties to the equity transfer agreement. Secondly, due to the violation of the legal effectiveness of the mandatory requirements and declared null and void the contract, or with revocable elements to be revoked and a part of the equity transfer agreement due to the special legal norms adjustment, effectiveness of equity transfer is controversial.In clarifying the basic problems of equity transfer, the article will focus on the specific reasons of effectiveness of the equity transfer. I discussed these causes into two categories. The first one is defective transfer effect on the equity transfer, specifically referring to is defective capital contribution, a shares to sell and transfer of nominal shareholders equity; The second is the effect on the limited shares transfer, refers to statutory restrictions and stipulated restrictions. Through the statistical case, the paper summarizes the reasons, which are analyzed in detail. The problem of defective contribution, with the introduction of judicial interpretation, the court judgment is unified. Usually will not deny the validity of equity transfer of defective capital contribution. Whether the assignee can obtain equity, or should bear the defective capital contribution complement responsibility, I think we should distinguish between the assignee who should know or by fraud; for the shares sell two assignees, I think we should distinguish whether the assignee has the right of preemption. For violation of the preemptive right we usually should not be recognized for its effectiveness. And when it does not involve the preemptive right, we should agree the assignee who change the registration of industrial and commercial in the administrative authority obtain that share. And non malicious transferee may claim damages, I think that it can benefit from the introduction of surrender or in the compensation scope in Punitive damages system, to curb such malicious behavior; for the effectiveness of nominal shareholders equity transfer, the provisions of the judicial interpretation refer to the system of bona fide acquisition to deal with the bona fide people, and for the effectiveness of the dormant shareholder equity transfer, courts usually identified the real identity of the dormant shareholder, if the dormant shareholder has been identified or nominal shareholder performanced, the effectiveness of the equity transfer certainly occurred. As to the share transfer restricted by the article of association can take effect or not, the court distinguish the original charter and amendment of the articles of association when dealing with the problem. Both of which has a different effect, shareholders should respect the relevant provisions of the original charter, in violation of the original charter will lead to the equity transfer in vain; and I think further distinguish is needed. We should take the reasonable limitation and the withdrawal right of shareholders into comprehensive consideration. Violation of preemptive right is the most common reason in the cause of equity transfer. In recent years judgment are becoming more and more similar, usually considering the violations of preemptive right transfer of equity invalid. But in judicial practice, for the consideration of maintaining social order and stability, When the transferee violated preemptive right, but has handled industrial and commercial registration and has been involved in company operation, the courts always accept the validity. I made a summary of this, also analyzed the common practice in direct or indirect infringement of preemptive right and do a statistical analysis. For the equity pledge, it has great relationship with the effectiveness of equity transfer. In commercial practice parties always treat it like the transfer of equity. And the law of equity pledge set the entry into force conditions seems to be more rigid than the equity transfer, this article analysis that question and think it should be distinguish the realization of pledge and the establishment of pledge. Company law for equity pledge restrictions on the realization of the right of pledge rather than the set-up of pledge. And then, I analyzed the effectiveness of transfer of pledged equity.Finally, on the basis of the judicial practice and the current theory, the author makes a systematic reconstruction of the related system, which can improve the system structure of the equity transfer in China.
Keywords/Search Tags:defective transfer, limited transfer, preemptive rights, effectiveness analysis
PDF Full Text Request
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