The Research On The Equity Bona Fide Acquisition Of Limited Liability Company In China

Bona fide acquisition originates from the "hand-guarding" principle of Germanic law,which means the former trading flaws cannot be followed.The original owner's request to the third party to return the ownership is not always justified in all circumstances.With the abstraction of rights,ownership and possession are separated,efficiency and convenience become the demands of commercial tractions,the parties can realize the transfer of equity only by reach the agreement.So,the phenomenon of not having the right to dispose of shares often happens.Therefore,the law designs equity bona fide acquisition to balance the interests of the real right person and equity transfer.Article 25 and article 27 of the Judicial Interpretation of Company Law(III)stipulate that if obtains equity in good faith,the people's court may handle the case according to Article 106 of the Property Law.However,the nature of equity and real rights is different.Therefore,the cognition and distinction of the nature and transfer model of equity and real rights is the precondition of refer the Property Law.According to the theory of cost-benefit,the real right holder maintains the lowest cost of his own right not to be infringed by others.So,equity bona fide acquisition can help gains outweigh the costs in equity transaction.At the same time,public appearance of rights becomes possible,convenient and efficiency become the target of commercial transaction provide applicable precondition for equity bona fide acquisition.Study the equity bona fide acquisition in German law can provide useful reference to Chinese law.The German Limited Liability Company Law made systematic provisions on the acquisition of shares in good faith.It takes the roster of shareholders as the appearance of equity rights,without considering the causes of registration errors,uniform registration errors as the prerequisite for goodwill,and take the blame of the true right holder as the obstruction of goodwill.By comparison,it is found that there are differences in the form of legislation,the appearance of equity rights,the equity transfer model is different between German and Chinese equity bona fide acquisition.Through the empirical study,it is found that in practice,apart from the nominated shareholders dispose the shares without authorization and the original shareholders dispose the shares to other,the goodwill acquisition also applies to the fake shareholders dispose the shares and the spouse disposes the shares registered in his own name without permission.When the judge determines whether there is a goodwill,the register of business records is used as the appearance of equity rights by reference to Article 106 of the Property Law.Generally,the assignee of equity interests can be regarded as the goodwill whenever it searches the business register at the time of transaction.Due to the law isn't clearly defined,the attitude of judges in cognize the equity transfer model and time point is not uniform.To enhance the correctness of business registration,this paper agrees that we should adopt the model of “the doctrine of intentionality” in the equity transfer,and take the business register as the appearance of equity right.On the other side,we can imitate the German law.Enhancing the correctness of business registration through corporate executive responsibility system,the industrial and commercial objection registration system.Among the constituent elements,the objectionable element of the real right holder is taken as the obstruction of goodwill obtained by the equity,so as to form a systematic standard.