Research On The Equity Acquisition In Good Faith In China

On the Construction of the System of Bona Fide Acquisition of Limited Liability Company,on the one hand,it is a breakthrough in the theory of goodwill of traditional goodwill,and on the other hand,it is a positive response to the practice of good faith.Article 26 and Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(Article 3)Article 26 and Article 28 stipulate that the transfer of shares of non-equity real right holders shall be made to the provisions of Article 106 of the Property Law of the People's Republic of China The rules of goodwill to obtain the rules,the provisions of the innovative provisions of the company or other shareholders in the transfer of shares in the special rights,so that the equity of the system of goodwill in legislation to be established for its academic and judicial practice in the discussion of the entity Relying on,but also to call the legal workers around the judicial interpretation of the establishment of a set of specific and effective equity acquisition system of the rules of application.As one of the important systems of modern civil law,the system of bona fide acquisition is mainly embodied in the protection of the rights of all rights by the trade-off between the rights of the rights holders and the interests of the beneficiaries of the goodwill,to a certain extent While at the same time paying more attention to the protection of the interests of the beneficiaries of goodwill.Throughout the national legislation,goodwill system since the date of birth,generally only applicable to real estate and real estate and other real estate areas,as to whether the applicable limited liability company's equity,only Germany and China,the relevant laws and regulations have carried out this Regulations.In contrast,the German law on the limited liability company equity acquisition system is more systematic,and the Chinese law on the equity system of goodwill is more simple,many of the core issues have not yet clear The Moreover,it is necessary to support the empirical research whether the system of goodwill acquisition of equity firms can effectively solve the equity disputes and promote the development of judicial practice.The construction of the legal system needs to clarify the constitution and legal effect of the system.The discussion of the system of goodwill of the equity should not only be judged by the value of the contingency,but also the concrete analysis of the elements of its institutional system,The solution to practical problems provides a feasibility and operational solution.In this paper,the author discusses the application of the system of good faith acquisition in the following aspects:The first part,from the norm to the empirical point of view to explore whether the system can fit the current system of law in China to prove that the system needs to be applied in China and can be applied,and explore the theoretical basis of equity interest in good faith and legal requirements.The application of the system on the one hand is because of the needs of commercial practice itself,on the other hand is the theoretical basis of the system that the right appearance theory and real rights can be attributable;The second part analyzes the specific provisions of the system in our country,mainly the application of the system of goodwill acquisition system in the case of the nominal investor of Article 26 of the Judicial Interpretation of Company Law and the "one share and two sale" stipulated in Article 28,And in this case the right to obtain a goodwill system in the case of nominal investors should not be applied to the system of goodwill;The third part analyzes the shortcomings of the system of goodwill acquisition system in China,and the shortcomings of the system of goodwill acquisition in our country mainly lies in the lack of equity change mode and the imperfection of the industrial and commercial registration system as the right of equity.In the fourth part,according to the defects which may be discussed in the previous part,we try to study the concrete construction of the system of goodwill in the framework of China's current law,draw lessons from the practice of other countries and according to the characteristics of the system itself,The main points are as follows: First,it is suggested that the change of ownership should be adopted in order to adapt to the existing system of equity registration in our country.Under the existing legal framework,it should be clear that the equity system should be used only in the " The second is to improve the equity registration system of our country,and in the equity changes in the introduction of objection registration system;Third,the proposed introduction of the system in the real right of the person can be the responsibility,the real right person In addition to claiming damages under the Contract Law,it shall also be entitled to the right to surrender the claim.