| The defective equity is the non normal state of the stock right caused by the shareholders’ improper performance of capital contribution,and the shareholders’ compliance with the obligation of investment according to law or agreement is not only the requirement for the investors to obtain the shareholder’s qualification,but also the requirement of the company’s capital system.The failure of shareholders to fulfill their investment obligations is an impact on the principle of capital determination stipulated by the company law.It is also a shock to the company’s credit and the company’s survival,and may even be an impact on the whole company system and market confidence.Therefore,company law attaches great importance to the company’s capital system and pays close attention to shareholders’ capital contribution obligations.Company law stipulates a systematic responsibility form for shareholders who fail to fulfill their obligations in time and in full.However,as the transferability of equity is the inherent property of the stock,when the defective holder fails to perform or does not fully fulfill its capital contribution obligation,it transfers the shares of the company.In this case,how to standardize the responsibility form of the relevant responsibility subject,improve the liability system of defective shares,how to protect the rights and interests of the stakeholders related to the company,and maintain the normal order of market transactions,becomes animportant subject.Around the issue of defective share transfer,theoretical circles and practical circles have discussed positively,forming many meaningful achievements,forming many different views.With the introduction of Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(III),some of the theoretical points of view was adopted.Although the law standardizes the issue for the first time in the form of articles,it has make relative judicial activities have relatively definite rules.However,due to the unreasonable judgement of the validity of the contract in judicial interpretation,there are unreasonable points in the design of subsequent liability rules.This paper will first discuss the validity of the defective share transfer contract and take this as the basis,and then make suggestions for the design of the rules of the liability for the transfer of the defective shares.In the author’s opinion,first of all,the defective equity transfer contract is effective,and the transferee of the equity can not cancel the contract on the grounds of the transferor’s fraud.The loss caused by the assignee shall be subject to the corresponding compensation obligation according to the contract’s warranty liability.Secondly,the "capital hole" of corporate capital caused by defective equity is needed to be complemented by the transferor and the transferee.Specifically,whether or not the assignee is well intentioned or not,the transferor and the transferee are jointly and severally liable when the creditor of the company or the creditor of the company assumes the responsibility.In order to demonstrate the author’s point of view more clearly and clearly,this article will discuss from the following aspects:The first part is the introduction of the article,including the basis of the topic selection,the value of the article and the research methods.The second part is the body and the body is divided into five chapters.The first chapter first puts forward the research problems in this paper.At the same time,it defines the concept from the theoretical,legislative and judicial practice in this article,and points out the incorrectness of the application of the law in the current judicialpractice.The second chapter discusses the validity of the transfer contract.First of all,it introduces the four views that have been formed in the field of commercial law for a long time,and analyses it briefly.Secondly,it analyzes the views recognized in the current judicial practice.On this basis,the author puts forward his own views and analyzes the reasons in detail.The third chapter mainly discusses the responsibility bearing of defective share transfer from three aspects: theory,legislation and practice.There are four main points of view on this issue in the field of commercial law.The current judicial interpretation takes third points of view,that is,the liquidated shareholders and the assignee shareholders are responsible for the joint liability.At the same time,it collated and analyzed the cases in current judicial practice,and pointed out that the rule is not unified in judicial practice.The fourth chapter puts forward the author’s opinions and suggestions on the rules of liability for the transfer of defective shares.First of all,it analyzes the basis of the responsibility of the transferor and the transferee respectively.On this basis,it puts forward the views on the design of the responsibility for the liability for the transfer of defective shares,mainly from the three aspects of the company,the other shareholders,the liability of the creditors of the company,and finally,to put forward a perfect opinion on the rules.The third part of the article is the concluding remarks,summarizing the full text and looking forward to the future. |
