Flaws Capital Contribution Equity Transfer Issue

Capital contribution is the basic obligation of shareholders.Capital contribution from shareholders is not only the precondition of setting up a company,but the basis of taking their limited liability.In order to seek their own benefit maximization,however,in juridical practice,shareholders will fail to perform or improperly perform it.As a result,defective share transfer disputes caused by defective capital contribution emerge continually.However,after a long period of discussion in our country,there is still no agreement on defective capital contribution in academic and juridical practice departments.Defective share transfer disputes should be paid enough attention by law because it not only is related to transferring the interests of the shareholders and the transferee,also involves the company,the company sponsors and other legitimate rights and interests of other shareholders and corporate creditors.Unfortunately,although Company Law and Company Law Explanation(Three),even the Company Law Interpretation(Four)"(Draft)have made specific provision to the problem of defective share transfer on confirmation of defective shareholders' qualification and classification of defective capital contribution,regulations on after-transferring problems such as transfer effectiveness,liability as well as right relief of assignee and risk prevention are not meticulous enough and its operability is supposed to be strengthened.The main contents of this paper are as follows:The first part is a brief introduction of defective capital contribution and basic problems in the process of defective equity transfer,such as the definition and types of defective capital contribution,confirmation of defective shareholders' qualification,and analysis of negotiability on defective equity.Only grasping these basic points,can we analyze the following complicated problems in association with defective share transfer.The second part is on the effectiveness of defective equity transfer contract,which is the key chapter of this paper.Firstly main theoretical perspectives and evaluation on the effectiveness of defective equity transfer contract is introduced.Then compared with foreign legislative justice and judicial practice in our country,effectiveness of defective equity transfer contract is revocable in our country,that is,when it is a dolus bonus,the transferee shareholder can exercise the right of revocation to revoke and invalidate the contract;when it is dolus manus,the contract is valid.There are several main theories of effectiveness on defective equity transfer contract including the theory of absolute voidances,the theory of absolute valid,the theory of revocability and the theory of discrimination.The third part is also the focus of this paper,which is about the liability subject and responsibility type after the transfer of defective share.This chapter mainly discusses different theoretical perspectives on liability subject and the relevant provisions,both at home and abroad to ensure the specific liability form in our country of defective shareholders to the company,the observant shareholders and corporate creditors after the defective share transfer.The fourth part is on right relief and risk prevention of transferee shareholder,which is sublimation and summary part.This chapter discuss right relief problems of bona fide assignee and mala fide assignee in the process of the defective capital contribution transfer when the interests of the assignee is at risk and loss.Meanwhile,it also describe specific measures to prevent risk from the perspective of the assignee,the company,industrial and commercial administrative department and law system.