A Typological Research On The Disputes Over The Transfer Of Defective Share

At present,subscription capital system enables that the time and amount of capital contributions to shareholders are determined by the company's articles of association.It has great freedom for shareholders to fulfill their obligation to invest.As a result,the defective share transfer is a general problem in commercial activity.The transfer of the defective share involves the interests of many parties,including the company creditors,the company,the transferee shareholders.However,the regulation about defective share transfer in the company law is imperfect.The lack of legislation directly leads to legal application problems in judicial practice.Through analyzing the cases about the transfer of defective share,the key focus of controversy can be concluded:The validity of defective share transfer contact;If the defective share transfer contact is valid,the point is the implementation of the contact;whether the transferee is bona-fide or not;the liability undertaking afer the transfer.Firstly,transferee has the right to claim liability for defects and exercises the right of defense in the contract law.Secondly,bona fide in defective share transfer should be defined as "unintentional or gross negligence".At the same time,the transfer of the share should have the right appearance of non-defective shares.It should exclude the application of "bona fide" due to unreasonable prices or free access to shareholding.Moreover,the transferors' liability for defective share transfer shall not be exempted from the transfer.When a company fails to pay off its due debts,and the shareholders' capital contribution period has not yet expired,the stock right is a defective share.The transferees accept responsibility if they are not bona-fide.Finally,Legislation needs to confirm the principle of distribution of responsibility after the transfer of defective share,and expand the scope of responsible entities to resolve disputes fairly.To protect the interests of the bona-fide transferee,it is suggested that the bona-fide transferee should improve the ability of risk prevention and control.In accordance with the spirit of corporate autonomy,Companies should make specific stipulations in the company constitution concerning how to prevent shareholders from defective share and details about the responsibilities of shareholders of defective share.It is significant to use the rationality and self-discipline of corporate governance.