Study On The Legal Issues Of The Transfer Of The Defects In The Limited Liability Company

With the rapid development of social economy,the investment enthusiasm of the commercial market has increased greatly,and the circulation of equity has become more frequent.After the revision of the Company Law in 2013,China confirmed the subscribed capital system,which greatly promoted the enthusiasm for investment in the market,but also brought a lot of impact to the current capital system of the Company Law.In practice,it is not uncommon for shareholders to pay their subscribed contributions in accordance with the agreement after the establishment of the company,and the phenomenon that defective shares have been transferred to others without correction has arisen,but because of the lack of clear provisions on them in the relevant laws and regulations,there have been many disputes and disputes in judicial practice and in the theoretical circle.<Department of Public Justice Although the introduction of legal explanation(3)standardizes the defects of shareholders' capital contribution and the problems after transfer in the provisions,and tries to perfect the solutions to this kind of problems,it still causes more heated debate because of its rudimentary regulation and the lack of clear and specific rules to deal with them.With the frequent occurrence of controversial cases and the increasingly fierce conflict exposed,the law of our country has not been further improved,the transfer of defective equity still constitutes a legal loophole,lack of specific applicable basis.The problem still lacks a unified understanding and processing path.In order to solve disputes and unify the application of law,it is necessary to make a more detailed and in-depth study on the transfer of defective equity,so that it can be used in legal practice efficiently and standardized.The main body of this paper is divided into four parts.First,starting with the formation and definition of defective equity,this paper briefly explains several classification standards of defective equity,states what the scope of defective equity is the broadest,broad sense and narrow sense,and puts forward that the defective equity studied in this paper only revolves around the narrow sense and discusses the defective equity caused by incomplete capital contribution.Next,this paper introduces the effectiveness of each subject and the transfer of defective equity after the transfer of defective shares.The main is put forward,because of the legal behavior of defective equity transfer through commercial transactions,which is more likely to cause disputes than the factual behavior such as inheritance and court enforcement,and there are countless cases arising from it in practice.Therefore,the following paper will focus on the controversial issues caused by this type of transfer.Second,we will analyze the validity of the defective equity transfer contract.The academic circles mainly have the effective theory,invalid theory,compromise theory and revocable theory.After a brief introduction to this,this paper analyzes it from the perspective of contract law,respectively,from the perspective of subject,object and meaning.And refiute the loopholes existing in the above theory,it may affect both sides of the transaction.Several cases of expression of intention are discussed separately,and it is considered that when the transferor deliberately conceals the fact of equity defects,resulting in the existence of a subjective state that the assignee does not know and should not know,the assignee should be given the right to rescind when it leads to the assignee to commit a legal act that violates its true intention.Therefore,this paper draws the conclusion that the defective equity transfer contract is revocable.The third part,the responsibility after the transfer of defective shares.This part is one of the core issues to be discussed in this paper,which is mainly divided into two parts:the choice of the subject of responsibility and the way of bearing responsibility.On the issue of the definition of the scope of the subject,this paper analyzes the subject of responsibility stipulated in the current law and its theoretical basis,and draws the conclusion that the current interpretation of the Company Law(3)that the subject of responsibility is limited to both parties is not comprehensive enough,and that the sponsors and other shareholders and directors,and senior managers should also be added to the responsibility of the sponsors and other shareholders and directors at the time of capital increase at the time of the establishment of the company.Then it distinguishes between the company and the other shareholders from the different object of undertaking.And the way in which creditors bear their respective responsibilities.The fourth part,the protection of the rights of the assignee after the transfer of defective shares.In this part,this paper makes a concrete interpretation and analysis of the legal protection of the transferee after the transfer of defective shares in the interpretation of Company Law(3).It is believed that although the relevant rules of judicial interpretation provide guidance for the subsequent treatment of the assignee's liability and his own legitimate rights,the provisions are not comprehensive.Even if the assignee can fill the loss of interests caused by the transfer of defective equity through the right of defense,the righit of recovery and other relief rights according to different legal basis and legal norms,and rely on the rules of exemption from liability set up by law,it can be exempted from the liability exemption rule set up by law.Corresponding liability,but in practice,due to the lack of applicaloility for a variety of reasons,the legal provisions are null and void to a large extent.Therefore,this paper provides some suggestions on filling this loophole,and strives to protect the legitimate rights.