The Validity Determination Of The Shares Transfer Agreement Singed By Unauthorized Persons

Article 71 of China's "Company Law" stipulates that the shareholders of a limited liability company have the right to transfer the shares,and the equity transfer can occur either within the shareholders or between the third party and the shareholders.China's "Company Law" does not stipulate the effect of the equity transfer agreement without the right to dispose of it.The equity transfer agreement is a kind of paid contract,and the provisions of the Contract Law on the validity of the contract can be applied.At the same time,the equity transfer agreement has its particularity and should consider the meaning of the company law.This paper intends to conduct a systematic study on the effectiveness of the equity transfer agreement concluded by the no-distributor from the perspectives of contract law and company law.The article contains three parts: introduction,body and conclusion.The introduction part includes the introduction of the problem,literature review,research methods,research ideas and logical structure.The body consists of four chapters.The first chapter is the analysis of judicial judgments on the determination of the validity of the equity transfer agreement by the undistributed right holder.This chapter first collects judicial judgment cases in which China's non-distributed right holders conclude the validity of the equity transfer agreement,providing an analytical sample for research.By summarizing the cases,it is found that the equity transfer agreement concluded by the undistributed right holder is deemed to be invalid,effective and pending.Through the analysis of the referee's case,it is believed that there are two main reasons for the different validity of the practice: First,the equity has different nature from the general property rights,and should be considered in the equity transfer agreement that is not authorized to be disposed of.Property and personalized;secondly,due to the failure to recognize property rights in the legislation,the referee in such cases is confused.Chapter 2,the review of the legal regulation of the determination of the validity of the equity transfer agreement by the undistributed right holder.This chapter sorts out and reviews the status quo of the legal regulation of the determination of the validity of the equity transfer agreement by the undistributed right holder,and reveals the problems and deficiencies in the validity of the case under the current legal framework of China.Firstly,the validity of the agreement on the determination of the non-discretional to enter into the equity transfer agreement in accordance with Article 51 of the Contract Law is to be determined: Article 51 of the Contract Law does not have the power to dispose of the validity of the contract,and is subject to the traditional law of the civil law.The influence of the one-dimensional property law system that is grasped by one body is also affected by the legal structure of the German civil law traditionally dealing with the effect of the disciplinary action.This clause combines the two,which is obviously unreasonable.The liability for defects in Article 150 of the Contract Law is premised on the validity of the contract of sale,and Article 51 of the Contract Law conflicts with this article.Article 3 of the "Explanation of Sale Contracts" is based on the principle of distinction recognized in Article 15 of the Property Law.It is stipulated that the seller has no discretionary power and does not affect the validity of the contract of sale.Article 51 of the Contract Law conflicts with this article.Article 51 of the Contract Law shall only regulate the relationship between debts and shall not be related to the validity of property rights.Secondly,it reviews the invalidation of the non-discretion's entering into the equity transfer agreement in accordance with Article 71 of the Company Law: Article 71 of the Company Law restricts the equity transfer of a limited liability company.The equity transfer in violation of this provision does not affect the company.According to the provisions of Article 71,paragraph 4 of the Company Law,it can be presumed that the restrictions on the transfer of shares are arbitrary,and violation of this clause is not a statutory invalidation under Article 52,paragraph 5 of the Contract Law.Finally,the review of the equity transfer agreement based on the acquisition of the equity in good faith is invalid.The acquisition of equity good faith is the concept of property law,and it is the judgment basis for whether there is no right to dispose of the equity,and there is no right to dispose of the equity transfer agreement.The effectiveness is the concept of credit law.The act of creditor is the cause of action,and the act of real right is the result of behavior.Under the formalism of creditor's rights,only the result of the change of property rights can be obtained by the action of the creditor act as the cause of action,and the censorship criteria for the validity of the undistributed contract are obtained in good faith.Obvious logic error.This paper believes that the equity transfer agreement entered into by the undistributed right holder should be valid.In the third chapter,the undistributed power holder concludes the validity of the equity transfer agreement.This chapter is the key chapter of this paper.Firstly,it is proved from the theoretical level of the contract law that the unauthorized right holder has entered into the validity of the equity transfer agreement: Article 132 of the Contract Law is an advocacy norm,and the property of others can become a sales contract.The subject matter of the guarantee;the liability for the guarantee is a liability for breach of contract.In the case of no disposition,the seller has a right to the subject matter delivered,and the liability for the guarantee is based on the validity of the contract of sale;The disposition of the contract only has effect between the parties to the contract,and has nothing to do with others.Whether the seller has the right to dispose does not affect the validity of the contract.Secondly,from the theoretical level of the company law,it is proved that the undistributed right holder has entered into the validity of the equity transfer agreement: the equity transfer is not only related to the interests of the parties to the agreement.The mode of property rights change of creditor's formalism should be selected;under the mode of change of creditor's formalism of property rights change,the effect of the equity transfer agreement should be different from the effect of equity change,and the equity transfer agreement concluded by the discretionary right holder should take effect immediately.The effect is only binding between the parties to the agreement.A valid equity transfer agreement only produces the transfer obligation of the transferor to the buyer,and does not result in a change in the equity of course;Under the mode of change of rights,there is only one legal act in the whole equity transfer process.Therefore,the acquisition of equity goodwill should be based on the validity of the equity transfer agreement;the effect of the equity transfer restriction is when the equity transfer is approved by the company and other shareholders to generate equity.The effect of the change,no binding transfer Can East,with whom and when efficacy signed a share transfer agreement,in violation of the equity transfer agreement of share transfer restrictions is valid.The fourth chapter is that the undistributed right holder has concluded the effective improvement proposal of the equity transfer agreement.On the basis of the previous discussion,this chapter proposes legislative proposals for determining that an undistributed right holder has entered into an equity transfer agreement,including the recognition of property rights in the General Principles of Civil Law;and amending the effective structure of Article 51 of the Contract Law to be effective;The change registration is effective.Secondly,in view of the problem of judicial judgment in the process of actual effectiveness identification,two specific and feasible suggestions are proposed: one is to amend the referee's thinking and form a unified validity judgment rule;the second is to issue a guiding case and a unified validity judgment.referee.The possible innovations of this paper are as follows: In this paper,the equity transfer behavior is defined as the research object of the equity transfer agreement concluded by the non-distributed company of the limited liability company,and it is investigated in all aspects,and the entry point is smaller than the previous research.More targeted.This paper focuses on the two aspects of system and judicial practice,analyzes the main problems in the current theory and practice,and uses this as a focus to conduct a more in-depth discussion.Compared with previous scholars,it focuses on the effectiveness of equity transfer agreements in the case of unauthorized disposition.It is more practical to identify theoretical research.The shortcomings of this paper: Because the author's theoretical foundation is weak,the research ability is limited,the professional ability needs to be improved,and the research on the effectiveness of the equity transfer agreement without the right to dispose is not deep enough.Moreover,the research materials in this paper are from the existing literature or the published referee cases.Due to the lack of their own practical experience,the research may be out of touch with reality.