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

With the rapid development of the market economy,the special property rights acquisition system in the civil law,a system of obtaining in good faith,has been used more and more frequently in recent years.Although Article 106 provides for a goodwill acquisition system,it does not distinguish between movable and immovable property.The promulgation of the law has not only failed to make the system of goodwill acquisition clearer,but has intensified the debate.China adopts a civil-commercial legislative model.The commercial law does not explicitly provide a system of good faith acquisition of equity.The introduction of the 2011 Judicial Interpretation of the Company Law makes the system of good faith acquisition of equity recognized at the legislative level,but the interpretation only stipulates that equity Good-faith acquisition reference,quasi-use real right good faith acquisition system applies.This treatment of equity seems to ignore the difference between equity and property rights.The nature of equity is different from property rights.It is not just a property right,it is more of a human nature.Attributes,equity transfers are more complicated than real estate transfers,and the appearance of the rights of equity is not clearly defined compared to the appearance of real estate and chattel rights.Therefore,the constituent elements of good faith acquisition of equity have their special characteristics that are different from the system of goodwill acquisition of real rights.In nature,the controversy over the acquisition of the equity in good faith system is even more controversial than that in the property law.Commercial law is more efficient and beneficial than civil law,and the establishment of a good-faith acquisition system for equity is of great significance for maintaining the security of commercial transactions and promoting the development of commercial transactions.This article is divided into three parts to explore the goodwill acquisition system:The first part of the article starts from the nature of equity,and believes that equity should adopt independent civil rights.Equity is a comprehensive civil right.Its basic content is not only simple property rights,but also non-property rights of shareholders to participate in the management of the company.Then analyze the transferability of equity in the civil and commercial legal system,and consider equity as a general right in equity transfer.Based on this,analyze the property attributes of equity,and consider that equity is not a controlling right and equity is relative.Sexual rights.Then,the article mainly analyzes the transfer mode of equity and the appearance of equity rights,and clarifies the mode of equity change and the appearance of rights are the theoretical basis for exploring the issue of the acquisition shareholders in the company registration is the appearance of rights.At the same time,this article also analyzes the socio-economic foundation of the system of good faith acquisition of equity,mainly focusing on promoting transaction efficiency and maintaining transaction security.The second part of the article,based on the goodwill acquisition norms and constituent elements of the property right determined in Article 106 of the Property Right Law,attempts to explore the constituent elements of the bona fide acquisition of equity.The article distinguishes between general requirements and special requirements for good faith acquisition of equity.In the general constituent requirements,this article considers the constituent requirements for good faith acquisition of property rights with reference to the following:1.The person who has no right to dispose of the equity acquisition in good faith needs to register with the company.Registered shareholders;2.The third party must be in good faith.Among them,the judgment of goodwill is that this article should distinguish the transferee.If the transferee is a shareholder,the standard of goodwill is goodwill and no fault;if the transferee is a third party other than the shareholders,the standard of goodwill should be Gross negligence.In addition,the article also defines the point of good faith,and believes that the point of good faith should be the entire time period from the beginning of the equity transaction to the end of the transfer of shareholders in the company registration;Consideration";4,the equity has been registered after the transfer.In addition,the two special requirements for the good faith acquisition of equity are specifically analyzed:the imputability of the real right holder and the reasonable trust of the third party.Through a comprehensive analysis of the constituent elements of good faith acquisition of equity,the intention is to make specific judicial use clearer.The third part of the article is based on Articles 25 and 27 of the Judicial Interpretation of the Company Law ?,and specifically analyzes the transfer of equity by nominal shareholders and the "one share and two sell" equity acquisition in good faith.The article argues that in the case of anonymous investment,the transfer of equity by a nominal shareholder should be handled differently,and the internal and external relations of the equity transfer should be distinguished to determine whether the nominal shareholder has no right to dispose of it.Can it be obtained in good faith.In the "one share and two sales" relationship,whether the seller of one share and two sellers have no right to dispose is discussed,and the application of Article 27 is specifically analyzed.