The Research On The System Of Bona Fide Acquisition Of Equity Of Limited Liability Company In Chinese Law

According to Article 25 and Article 27 of “Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(III)”,hereinafter to be referred as “Provisions(III)”,which was issued in January,2011,the system of bona fide can be applied,refer to the rules of Article 106 of “Real Rights Law of the People's Republic of China”,to equity of limited liability company in specific occasions.This means that the system of bona fide acquisition of equity has been formally established in our country.The system of bona fide acquisition of equity not only works as a breakthrough by which traditional civil law theory is applied to commercial field,but also reflects the need to protect the security and convenience of transaction in the trial practice.However,there are still many defects in the existing system of bona fide acquisition in China,for example,“Provisions(III)” does not clarify the constitutive requirements of bona fide acquisition,however,it just prescribes that the rules of bona fide acquisition of real rights can be referred to.Taking into account the specificity of equity,in order to find out how the rules of bona fide acquisition of real rights can be adjusted to the transfer of equity,further investigation is needed.This paper intends to start with some pre-theory of bona fide acquisition,such as the characteristics of equity and the mode of equity transfer,by analogy the constitutive requirements of bona fide acquisition of real rights,to analyze the system of bona fide acquisition of equity.Summarizing of the cases of bona fide acquisition of equity by retrieving existing cases,and then analyzes the specific application of this system.This paper is divided into four chapters:The first chapter is an overview of the system of bona fide acquisition.Firstly,this paper introduces the origin and development of bona fide acquisition system in traditional civil law,illustrating that it origins from the system of Hand Muss Hand Wahren in Germanic law and Adversarial process in Roman law,in order to balance property protection and transaction security,it introduces the system of right appearance and tends to be perfect.Secondly,this paper expounds the rational basis of the application of the bona fide acquisition system.Lastly,this paper introduces the establishment of the system of bona fide acquisition in China and the results of retrieval of existing cases.The second chapter is the substantial elements of the bona fide acquisition of equity.The first substantial element is that the transferor has no right to dispose the equity,there are four types of unauthorized disposal,and right appearance is necessary for recognizing unauthorized disposal in the bona fide acquisition of equity,which means the man who does unauthorized disposal need to be registered.There are many drawbacks in China's current shareholder registration system,which is bad for the safety of equity transaction.The second element is the assignee's goodwill,goodwill means the assignee doesn't know the fact of unauthorized disposal,and he needn't prove his goodwill.The third element of the bona fide acquisition of equity is a reasonable transaction price,and there are several ways to confirm the transaction price is reasonable.The third chapter is the formal elements of the bona fide acquisition of equity.Firstly,this chapter analyses the equity change model in which the assignee can get the equity once the contract go into effect,then,it points out that the effect of resolution of shareholders' meeting won't affect the bona fide acquisition of equity.Lastly,it holds that registration of change of equity ownership is the formal elements of the bona fide acquisition of equity.The fourth chapter is the specific application of the bona fide acquisition.This chapter illustrates the recognition of bona fide acquisition in the four basic types of unauthorized disposal of equity,which are bona fide acquisition of equity in nominal shareholders' unauthorized disposal of the equity under his name,second-time sell of equity,disposal of equity when the former disposal is invalid and spouse's disposal of equity without the other's permission.The conclusion briefly summarizes the content of this paper.