On The Bona Fide Acquisition Of Equity Of Limited Liability Company

As the main body of commercial trading,company plays a very important role in commercial transactions.At present,Equity of a limited liability company has become an important form of wealth,and become the main body of the commercial trade investment object,its economic potential,the subject of profit-driven business transactions are made in China equity transfer or trade increasingly frequent.That equity of a limited liability company become an important object and subject matter is benefit from active market,the growing company and rapid development of social economy and so on.That the Bona Fide acquisition of equity of a Limited Liability Company is the combination of commercial law and civil law.And it is not only to protect the safety of the commercial trade,and is helpful for solving the disputes related to equity transfer or controversy.Both parties based on self-interest and the pursuit of economic interests want to be able to obtain maximized interests in equity trading.The Supreme People's Court promulgated the third judicial interpretation of the company law in 2011,it stipulates the transfer of equity of nominal shareholders and a second sellby reference to "property law" and the 106 th shall apply.Based on the Bona Fide acquisition of equity of a Limited Liability Company,analyze and build this system mainly from the concept of equity,nature,legal basis,equity change point and the specific choice of equity in good,applicable elements and the influence of concrete building and legal effect of the specific.Details are as follows:Chapter I analyzes that equity is applicable in nature and theoretical basis on the basis of its concept,nature and application of theoretical basis and legal theory.According to the article for the cognizance of the shareholders in good circumstances,we should departure from the essence of its investment.Equity does not have a definite concept,and equity and property rights have some similarities and there are many different characteristics with property from its nature.Equity has some nature like identity,capital,management and attribution,and it is not a collection of rights,and it is a new independent civil right,which contained certain person identity or property.The bona fide acquisition of equityis the combination of civil and commercial law,discussing the application of the bona fide acquisition of the equity should be carried out on the premise of commercial appearance of socialism,and the formation of the commercial appearance,is also the equity of public summons.For trading in the company law,the pursuit of efficiency and security,is also applicable in legal basis.Chapter II introduces theory of the pattern of changes in equity and the company law's choice about that,and its influence on the bona fide of equity.The first section mainly introduces the theory of the meaning of creditor's rights and equity change of creditor's rights formalism theory.And the second section discuss that the company law have no specification of changes in the pattern,according to the company law and related judicial interpretation and explanation of its direct interpretation,system and the objective interpretation and so on,our country has chosen the legislative mode of creditor's rights mean,equity transfer in the absence of other relevant conditions of the agreement,both parties of equity transfer,especially trading counterpart trust existing commercial appearance,namely the change of the effect of the contract,the equity between both sides to complete the transfer,the assignee equity become real equity holders.Chapter III mainly analyzes the applicable elements of the bona fide acquisition of equity.The third Judicial interpretation of company lawregulation in dummy shareholder transfer of equity and "a second" situationrespectively applied to the right to dispose of the appearance,the assignee in goodwill,reasonable of price and complete requirements such as industrial and commercial registration change.The first section mainly introduces the right to dispose of the appearance in the first quarter,according to the article "the third judicial interpretation of company law" article 25,27 have the right to dispose of the appearance,for dummy shareholder and the shareholders of "a second" central plains has no right to dispose of,our country should apply substantive elements that shareholders,not have the right to dispose of the premise and foundation.However,for the right to dispose of appearance,also should limit the protection of the equity transfer contract is invalid or the existence of severability situation,if allowed to exist severability and achieve equity transfer contract,lose the bona fide system for the pursuit of transaction safety and efficiency as well as the principles of balance,will have adverse effects on the trading order,etc.The second section mainly expounds the assignee in good elements.Main needs to notice to the assignee of goodwill for well-meaning identifying and point,think good judgment may to judge their own discretion,but kind of point based on the particularity of equity and for considering the transaction order,in the bona fide that point shall be deemed to be the assignee notice of the company which changes its shareholders with.The third section mainly illustrates the reasonable consideration of applicable elements,think reasonable consideration of identifying difficult in theory and judicial practice,the determination of reasonable price should be in the amount of registered capital or subscribed capital as a benchmark,with reference to apply the law of contract interpretation II and make a comprehensive consideration.The fourth section mainly introduced the industrial and commercial registration of change to complete the requirements,the third person in the bona fide complete obtained equity to a third person have requirements of industrial and commercial registration has been completed.Industrial and commercial registration in China has a certain extent,have the right to the function of appearance,but still need to strengthen.At the same time,also should strengthen company for change the obligation of shareholders,or the register of shareholders strengthen the necessary documents for company registration.Chapter IV mainly elaborates relevant legal effect of equity in the bona fide for transferor,the assignee and other original shareholders.Assignee and transferor have no contract.the bona fide assignee knows right which has flaw has the right to free choice;Original shareholders with the assignee has no legal relationship,and therefore the original shareholders only can breach of contract,tort,or unjust enrichment methods such as request compensation by the transferor.The Bona fide assignee assignee equity to join our company,the law for the other shareholder's preemptive right of priority protection,but this protection is not completely.In the equity transfer,bona fide assignee if applicable elements in accord with equity goodwill,and does not harm the company's other shareholders buy,can become the company's new shareholders,shareholders rights,fulfill its obligations to shareholders.