The Study On The Bona Fide Acquisition Of The Equity Of Limited Liability Companies In China

Equity is an important manifestation of wealth in modern society,its circulation is of great significance.Therefore,the requirements for the security of transactions are comparatively higher and the bona fide acquisition of the equity emerged at the right moment.Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Contract Law of the People's Republic of China(?)has clearly stipulated the bona fide acquisition of the equity.However,there are differences in scholars' understanding of the above principled provision.The details are as follows: Firstly,there are controversies about whether equity can be applied in the bona fide acquisition.Secondly,if equity can be applied in the bona fide acquisition,what is the constitutive requirements of it.Specifically,the logic of the scholars' objections to the bona fide acquisition of the equity is mainly that: In the current system of business registration,the registered right can not accurately reflect the actual right and admit that the application of bona fide acquisition will excessively undermine the stability of equity,resulting in the imbalance of interests beteen the real rights holder and the third party acting in good faith.Although these worries is not entirely unjustified,it may not be the best choice to deny the bona fide acquisition of the equity.Recognition of the bona fide acquisition of the equity is conducive to the restructuring of economic organizations and helps promote the economic prosperity.However,in order to eliminate its negative effects,considerable restrictions must be imposed on the bona fide acquisition of the equity.In view of this,for the purpose of discuss whether equity should be applied in the bona fide acquisition and how to apply it,this paper is divided into four parts.The first part is aimed at inducting the theme of this paper.Firstly,by combing the development vein of the bona fide acquisition since Roman law,grasps the tendency of the extension in its applicable scope.Secondly,this part summarizes controversial points of the institution of bona fide acquisition of the equity in the academic circle,scholars mainly focus on its applicable prerequisites and conditions.And on this basis,this part analyzes the logic of the scholars' objections to the bona fide acquisition of the equity.The second part is the importance and feasibility of the institution of bona fide acquisition of the equity.Through discussing the necessity of equity circulation,this part analyzes the institutional advantages of bona fide acquisition of the equity in the field of transaction security.At the same time,responsing to the logic of the scholars' objections,analyzes the alteration mode of equity from the nature of equity and clarifying that the alteration mode of Intentionalism of Creditor's rights goes against the balance of interests between real rights holder and the third party acting in good faith.However,on the basis of the foregoing analysis,this section argues that it is possible to overcome the imbalance of interests by raising the accuracy of the business registration and setting up strict constitutive requirements,then based on the importance of bona fide acquisition of equity disclosed in the “system value” section,put forward that China Company Law should insist on the application of bona fide acquisition of equity,but it is necessary to hold strictly in its constitutive requirements.The third part is the suggestion for perfection of bona fide acquisition of equity.This section responds to the academic circles' dispute over the bona fide acquisition of equity from two aspects: the appearance of right and the elements of composition.In terms of the appearance of rights,it is proposed to improve the accuracy of the business registration system by draw lessons from the advance notice registration,the challenge system of registration and the correction registration system in the field of real property registration.In terms of specific constitutive requirements,the scope of application of the bona fide acquisition of equity should be limited in order to maintain the balance of rights and obligations between the parties.The fourth part discusses the effectiveness of equity acquisition system.This part focuses on the effectiveness of bona fide acquisition of defective capital contribution and resolves the distribution of rights and obligations between the parties involved in the transfer to defective capital contribution by expanding the the system of the liability for warranty against defects in the field of contract law.By applying the principle of commercial appearanceism,assign rights and obligations between the assignee and the company's creditors.