The Research On The Rule Of Equity's Ownership Alteration

With the development of China's market economy,the private economy is becoming more and more active.The number of the company presents a trend of explosive growth.Especially after the reform of our company's capital system,there is hardly any threshold for the establishment of the company.There are more and more disputes related to the company.In the disputes related to the company,the dispute over the transfer of equity has occurred frequently.The equity's ownership alteration is a problem that can not be avoided in the transfer of equity.In the circles of civil and commercial law,there has not formed a more unified view on the rule of the equity's ownership alteration so far.The purpose of this article is to explore the rule of the alteration of the limited liability company's equity in ownership,so as to provide a useful idea for understanding the related problems in the judicial practice.This article will start with a case of equity transfer dispute,and the case leads to the issue that I want to discuss,that is,the rule of the equity's ownership alteration(or the mode of the equity's ownership alteration).For this problem,this article will briefly summarize the content of the equity of the limited liability company at first,and then analyze the nature of the equity.It is concluded that the equity is an independent and comprehensive right different from the real right and the creditor's right,the rule of equity's alteration has its particularities compared with the rule of real right's alteration.The causes of equity's alteration may be a legal act,or a non-juristic act.For the equity's alteration caused by non-juristic act,such as inheritance,at the time of the emergence of the inheritance and there is no other provision in the company's articles of association,the effect of the equity's alteration shall be made(similar to the ownership of the real right obtained by the successor when the deceased dies),which is clearly defined by the company law.The legal act is the main cause of the equity's alteration,which is very controversial in practice.This article will focus on the transfer of equity which is common in practice to discuss the rule of the equity's alteration caused by legal act.Because the equity's alteration is related to other shareholders' preemptive right and autonomy of parties' will,for the convenience of discussion,the issue discussed in this article is set as follows: In a limited liability company,to explore the issue of the equity's alteration caused by equity's transfer in legal act,assuming that other shareholders do not exercise the preemptive right(it does not have the problem of preemptive right when transferring equity to other shareholders;The right of preemption of other shareholders shall arise when the equity is transferred to a third party rather than other shareholders),there is no other regulation on the equity's alteration in the law,and there is no other agreement on the equity's alteration between parties.In reality,in view of the similarity by name between the equity's ownership alteration and the real right's ownership alteration,it seems that we should learn from our real right's alteration mode(creditor's rights formalism)naturally to construct the rule of the equity's alteration in China.The author also made relevant association at the beginning of contacting with this problem,and will deal with the equity analogy real right,regarding changing the list of shareholders as an effective element of the equity's alteration.However,this view is clearly inappropriate in the case cited in this article,so this article examines the similarities and differences between the rule of the real right's alteration and the rule of the equity's alteration in Germany,Chinese Taiwan Region,South Korea and France.It is found that the rule of the equity's alteration are not consistent with the rule of the real right's alteration in these countries and region.Moreover,in these countries and region,the rule of the equity's alteration essentially have adopted the rule of expressionism,that is,equity's ownership is changed when the equity transfer contract takes effect.Therefore,after analyzing several viewpoints about the timing of equity's alteration,this article holds that the rule of the equity's alteration by transferring equity should also draw on the rule of alteration of expressionism in China's limited liability company.Accordingly,this article holds that we should take informing the company and obtaining the company's recognition as an important element against the company,and take the business registration as an important element against the third party.In view of the majority of scholars believe that the second signed equity transfer contract of which “the same equity is sold second times” is still a valid contract,so if we take the standard of the equity's ownership alteration in expressionism,the malicious third party will obtain the equity's ownership basing on the effective equity transfer contract,which is obviously unreasonable.So it is necessary to amend the standard of the equity's ownership alteration in expressionism.In view of this,this article also holds that the second signed equity transfer contract of which “the same equity is sold second times” is still a valid contract,the essence of this problem is that how the effect of the unauthorized disposition contract is.So this article will combine the rule of the real right's ownership alteration to elaborate.Because the unauthorized disposition contract is still a valid contract,Therefore,in the real right's ownership alteration,there will be such an unreasonable situation of third malicious people to obtain real right's ownership basing on effective contract and delivery.Accordingly,it is suggested that the mode of real right's ownership alteration to be amended from “the alteration of real right's ownership = effective creditor's rights contract + delivery / registration” to “the alteration of real right's ownership = disposition right + effective creditor's rights contract + delivery / registration”.Because the rule of real right's ownership alteration in our country is actually a combination of expressionism and delivery / registration,Therefore,the rule of equity's ownership alteration should also be amended as “the alteration of equity's ownership = disposition right + effective equity transfer contract ”.So it will not appear such unreasonable illogical conclusion that when the equity was transferred for the first time under the condition of having changed industrial and commercial registration,regarding the second signed equity transfer contract between the person without authority and the third party is valid,the malicious third party will obtain the equity's ownership.“The judicial interpretation of the company law(four)” article 21 reflects that the equity transfer contract which infringe other shareholders' right of preemption is valid in principle,it is also possible to get a more reasonable explanation under the revised rules of equity's ownership alteration envisaged in this article.Besides,on the basis of the revised rule of equity's ownership alteration,I also make some relevant reflections on the issue about the dissolution of equity transfer contract which often accompany with the issue about the rule of equity's ownership alteration in reality.In summary,the conclusion of this article is that the rule of equity's ownership alteration in China should be designed as “the alteration of equity's ownership = disposition right + effective equity transfer contract”,taking informing the company and obtaining the company's recognition as an important element against the company,and taking the business registration as an important element against the third party.