Font Size: a A A

Constitutive Requirements Analysis Of The Bona Fide Acquisition Of Equity

Posted on:2018-12-14Degree:MasterType:Thesis
Country:ChinaCandidate:A P WangFull Text:PDF
GTID:2336330515482637Subject:Law
Abstract/Summary:PDF Full Text Request
The Bona Fide Acquisition determines the attribution of rights under unauthorized disposal,with the purpose of the protection of transaction security.With the development of the society,the deal is not confined to the traditional trade of res corporales.More and more res incorporales begin to enter the trading area.The equity of the companies with limited liability is one of them.In equity trading of the companies with limited liability,unauthorized disposal often appears on equity,and thus conflict of interests arise in the real right holder and the bona fide assignee.The Bona Fide Acquisition is the best way to resolve this conflict.Therefore,the Bona Fide Acquisition needs to be applied in the trading go equity.But equity of the limited liability company and the traditional real right have some differences in many ways.When applying the Bona Fide Acquisition in jus rerum,changes should be made correspondingly according to its own characteristics.First of all,the judgment of the equity ownership should have substantive standard.Namely,the person who exercises the equity as the shareholders in the company is the obligee of the equity.Although the register of shareholders and industrial and commercial registration can reflect the status of the company's equity,in the register of shareholders,if industrial and commercial registration and real ownership situation appear inconsistent,attribution in equity shall be determined according to the condition of real equity stake.The disposal not made by the obligee is the unauthorized disposal,and the unauthorized disposal for the equity will cause reflection whether the transferee accord with the Bona Fide Acquisition.Second,under the present legal framework in our country,industrial and commercial registration is a limited liability company's equity rights of appearance,and the third person to industrial and commercial registration of trust is the source of its bona fide.However,because of the lack of corresponding institutional security for the current industrial and commercial registration system,its accuracy is low,so it need to be modified so that it can better serve as a limited liability company's equity rights appearance.The modification of industrial and commercial registration shouldbe in accordance with the real ownership situation from the following several aspects: first,introduce the dissidence registration in industrial and commercial registration;Second,greatly shorten the time of the alteration of industrial and commercial registration;Third,the amount of capital to shareholders shall be included as the content in industrial and commercial registration.Again,assignee acquires equity when noticing the company.After the equity transfer contract comes into force,transferor and the assignee only have the relationship between rights and obligations,without the effect of changes in equity.Equity should be changed when notifying the company.After notifying the company,the transferee has the equity.Without notifying the company,the transferee does not have the equity.Equity belongs to the original obligee.There is no conflict of interest between the obligee and the assignee,and there is no space for applying the Bona Fide Acquisition.Finally,deferability of the obligee should also be considered when acquiring the Bona Fide Acquisition of equity.If the obligee does not have deferability,the Bona Fide Acquisition cannot apply to him.Deferability of the obligee mainly includes two aspects: one is that the obligee has fault for the formation of the appearance of the unauthorized disposed people,and the other one is that the obligee neglect to check the industrial and commercial registration so that the industrial and commercial registration have fault for a long time.The other elements of the Bona Fide Acquisition can be applied on relevant provisions of the jus rerum and the Interpretation of the Supreme People's Court on Several Issues concerning the application of the "People's Republic of China property law"(a).
Keywords/Search Tags:Equity, Equity disposition, The Bona Fide Acquisition
PDF Full Text Request
Related items