On The Right Of Claim For Registration Of Equity Interests Transfer In Limited Liability Company

The transfer of equity interests transfer of limited liability company in China shall be governed by the rules of "neither party challenging the third party without registration".The assignee has the right to register for the alteration of the equity right.In registration and judicial practice,there exists the case of “a transfer to two buyers”,and of a serial transfer.The above questions upon the realization of assignee's rights all depend on the analysis of the basis of the right of claim of equity based on registration antagonism.As a kind of compound right,the equity interests presents a relative effect in the legal relation between a shareholder and a company.At the same time,the ownership of equity interests is definitely vested in their shareholders,so the transfer between the two sides show an absolute effect.Therefore,the transfer of equity is analogous to the transfer of creditor's rights and adopts the mode of expressionism alternation pattern,which agrees with the interpretation of the existing law of our country.Under the expressionism alternation pattern,the alternation of rights is in effect in the formation of the equity transfer contract,and shall be against the third party after the registration.The assignor is under the obligation of the transfer contract to transfer ownership of equity interests and to assist the assignee for registration.The right of claim for registration under the equity transfer contract is a creditright and is limited by the limitation.Under registration,the performance of the content of the transfer contract is divided into two stages: the right to obtain,and the right to obtain the right to resistant.The assignee may apply for the court to request for the performance of the assignor and the company as the registration obligor to assist registration on the basis of the contract.In the case that the registration obligor refuses to perform the registration obligations or the third party has obtained the registration,the assignee terminate the contract for that the contractual purpose can not be reached,and the contractual interest cannot be realized.The legitimate basis of the right of claim for equity registration lies in the recognition of bona fide acquisition and whom is the ownership of the equity interests finally attributed.As an act of disposition,The unauthorized disposal act of equity alternation is logical premise of bona fide acquisition in good faith.The registration of the company registration authority is credible and is the basis for the acquisition of good faith by analogy.At the same time,based on the inadequacy of the credibility of the registration authority of the company registration,it is necessary to consider the factors that can be attributed to the parties in the transfer as a supplement to the bona fide acquisition of the equity.For the case of the serial transfer of equity,there exists the credible right of claim of equity for registration when the limitation of action between the intermediary and the final assignee is not expired.If the transfer and middlemen agree,it can be applied for the omitted registration combined with the system of the transfer of right of claim.If the middlemen do not agree,the final assignee may exercise the right of subrogation and request the court for registration.The middlemen can defense with counterargument right for the simultaneous performance.If the the limitation of action has been expired,the final assignee may claim the right of claim for real right to the assignor.In judicial review,consideration should be given to the protection of the interests of the intermediary.In the case of "a transfer to two buyers",if there is no accountability for the transfer or the transferee,it should be considered in the reasonable duty of care of the third party,such as to check the consistency of company registration and recorded in the register of shareholders.If the third party acquires the equity in good faith,both the third party and the assignee may claim the right of registration to the assignor,and the party who obtains the registration shall first confront the other party and eventually obtain the right.The other party has no rights against the force and be taken,thus the registration claim can not be achieved,and the other party has only to ask the assignor for the liability of breach of contract or to terminate the contract directly.