Research On Equity Acquisition In Good Faith Of Limited Liability Company

Equity acquisition in good faith system of limited liability company, is basically a kind of redistribution of risk and rights under an abnormal state, and is a basic legal tool for protecting dynamic property security value. Generally speaking, it comes from the relevant rules of acquisition in good faith system in Property Law, and depends on the establishment of acquisition in good faith system of property in Property Law. Therefore, the existence of equity acquisition in good faith system absorbs the acquisition in good faith system of property. Although there exits inherent distinction between the two systems, but in juridical practice, equity acquisition in good faith system is still operated and applied based on acquisition in good faith system of property.Equity is a kind of monogamous right and civil right. Mostly, the equity always presents the scope of private right, so the special nature of market liquidity leads that the public right of the states shouldn’t appear more in the operating of the equity.Hence the equity is a presentation as a kind of private right. The equity is a property right, to begin with nature,both of the two have the same right nature and value nature and are contained in the scope of property rights. Therefore, property rights and equity have the similar essence in some degree. Analyzing from the legislation of the acquisition in good faith system of the states, both of French Civil Law and Japan Civil Law consider it as timely acquisition in good faith system which is considered as public trust system.The change of the equity could always belong to the quasi-property right. As an intangible property, the nature of equity could be likened to absoluteness as well as inclusiveness. According to the ownership of the rights, all of the stakeholders have the rights to invade the legitimate rights and interests in and out the company.It was determined in the judicial practice before the publish of the judicial interpretation, see from the cases of Cui Hailong and Yu Chenglin, it could be proved that, on one hand both in the two judgments, it isn’t mentioned if the business administration organization’s registry right or not and if they have high credibilityaccording to Provisions of the Supreme People’s Court on Certain Issues Concerning the Application of the “Company Law of PRC.” On the other hand, it has inherited and makes sure the judgment in the second trial.The regulation of ex right disposition in the judicial interpretation of Company Law(three) has illustrated “a two sell” problem. The court should deal with the similar problem according to acquisition in good faith system. It means that acquisition in good faith system has been included in the sources of trail formally.The perfect presentation and extension of the Article 26, 28 of the Judicial Interpretation of Company Law(three) solved the problem that there is no certain legislative authority in previous juridical practice. Although it doesn’t clear the situation that the dummy shareholder disposes the stock, and right appearance,business administrative organization’s accomplishment of registration of shares could be recognized as a standard.In methodology, Article 26 and 28 could be concluded in incomplete normalization, the presentation of indicative reference specification provide actual effective references to some of the Equity dispute cases which don’t have legislative authority. The fact that the assignee relies on it could be recognized as the presentation of good will. In Civil Law of some countries, the definition of “good faith” is not consistent with each other. In foreign legal theories, the interpretation of“good faith” is depend on the subjective mental state, and is defined relying on the definitions of leniency and strictness.Nowadays, with the rapid development of economy, market circulation gets faster and transactions get more convenient. The two parties can come to an agreement freely based on the principle of autonomy of will in limited liability company which is featured by its collaboration of human resource, unless it was stipulated by law or regulations otherwise. The relevant law and regulations shouldn’t be applied intentionally on means of identification of the consideration of equity transfer, identification in a rational way and means of identification of equity transfer.