Research On The Bona Fide Acquisition On The Transfer Of Equity By One Spouse And The Standard Of "Goodwill"

With the diversification of market economy,Bona Fide Acquisition of the equity is necessary.However,the theorists doubt that it can not be perfected in the construction.Specifically,the application of Bona Fide Acquisition of equity is justified,includes "Equities Being Sold Twice"," Equities Being Handle By Dummy shareholder " and transfer of equity by one spouse,which is related to "Company Law","Marriage Law" and "Civil Law".The provisions on marital common property in Marriage Law,show the diversity of marital property,including real estate and movable property,and also equity.The question of whether Bona Fide Acquisition can apply to transfer of equity by one spouse,it requires discussion of the following issues.Firstly,whether the equity set up by spouse is the community property.Secondly,the standard of shareholder qualification,which do not rule in any theories and legislation.Furthermore,it is more freedom in the judicial decision.Thirdly,the dispution on the nature of equity,which is the key point on this paper.In other words,equity is different from the right of ownership,which influences the standard of community property.This thesis based on the Bona Fide Acquisition in modern civil law,then deeply analysis this legal institutions whether applied in Marriage Law.In practice,Chinese judes notes that,only one of couples can be registed in Register Of Members,although the equity belong to the spouse.And tend to focus on the validity of the agreement,which sets by one of spouse,who out of other's approval.Above all,Bona Fide Acquisition on transfer of equity by one spouse will be truthly.Then,deeply studying on the case of transfer of equity by one spouse,this paper analyzes the difference of the court judgments,sums up the cases with the nature of the stake,whether it is community property,the standard of goodwill,and the conditions which applied in the Bona Fide Acquisition.Through the analysis of the different situations in practice,including paying the price,agency by estoppel,the burden of proof of "goodwill",the author tries to objectively judge the court's subjective cognizance of "goodwill".Finally,through the discussion of the appearance of the right and the agency of family affairs,the author try to construct the standard of "goodwill" in the transfer of equity by one spouse.This paper has four chapters:Chapter one: The legitimacy of Bona Fide Acquisition of the equity.Whether the equity can be applied to the Bona Fide Acquisition,the viewpoints of the theorists 'questioning and support are.The negative said that the equity is different from the real right,and should not be applied the Bona Fide Acquisition;the equity can not meet the constitutive requirements in the application of Bona Fide Acquisition.The equity as an independent new type of right form,its essence is the property right,there is the possibility of unauthorized disposition,so do as in practice.In addition,Bona Fide Acquisition of the equity has the corresponding theoretical basis,which provides legitimacy for the application of Bona Fide Acquisition of the equity.Chapter two : Bona Fide Acquisition on the transfer of equity by one spouse in theory and practice.From the theoretical point of view,the one of spous have no right to dispose of community property,which is the prerequisite for the Bona Fide Acquisition.The same as in practice,the court in the trial of disputes about transfer of equity by one spouse,which is based on Bona Fide Acquisition of equity.Both theory and judicial judgement,it is proved that the application of Bona Fide Acquisition on the transfer of equity by one spouse is necessary.Chapter three: The analysis of standard of "goodwill" in the transfer of theequity by one spouse.Based on the judicial practice,the author try to find out the objectively standard of “goodwill” in that the transfer of equity by one spouse.The conclusion of analysis of judicial cases shows that the determination standard of "goodwill" in Bona Fide Acquisition is uncertain and diverse,so it is necessary to study the standard of "goodwill".Chapter four: The localization construction of the standard of "goodwill" in transfer of equity by one spouse.According to "Company Law",the objective standard of "goodwill" of the third person is constructed,considering the construction of the rechtsschelnhhg,the third person can get whether the assignor is the real right person through the external approach.So,it's helpful to establish the objective standard for "goodwill".According to "Marriage Law",the standardization of the agency of family affairs should be perfected,and the third person can judge whether the ownership of the disposition is justified by it,and it is a judgment standard of“goodwill”.