On The Effective Time Of Outbound Transfer Of Equity In A Limited Liability Company

Equity has the dual characteristics of right attribute and property value.It can be the object of transaction in commercial activities.The external transfer of stock rights,that is,the transfer of stock rights by the shareholders to the persons other than the shareholders for compensation,is a typical commercial transaction mode.However,in the current law and judicial interpretation of our country,the time of the external transfer of stock rights of the limited liability company has not been clearly defined.The external transfer of equity is one of the forms of successor equity,and also one of the reasons for the change of equity.According to different elements of equity change,there are three views in academic circles.Different elements lead to different time of equity change."Formalism mode" advocates to change the corresponding documents as the elements of equity transfer effect,such as commercial registration and internal register of shareholders.However,such strict regulations violate the principle of autonomy of the parties to the contract seriously,and are contrary to the legislative intent and judicial practice of relevant judicial interpretation.Moreover,in the relevant literature and case judgment reasons,the information records of the register of shareholders and other documents are usually regarded as one of the bases for determining the qualification of shareholders,which does not have the function of establishing rights."Intentional mode",when the equity transfer contract comes into effect,the equity is transferred to the transferee immediately.Although this view fully respects the principle of contract autonomy,it is different from the burden behavior and disposal behavior It is also easy to put the equity transferor at a disadvantage(for example,the equity will be transferred to the transferee immediately when the contract comes into effect,but the transferee may delay to pay the equity transfer payment),and it is easy to hinder the preemptive right of the remaining shareholders when the company's articles of Association set restrictions on equity transfer."Revisionist model",which claims that the effectiveness of the contract immediately triggers the effect of equity transfer,and this effect only constrains both parties of the contract.Only after the company changes the register of shareholders,the equity transfer will have effect on it,and at the same time,it adopts registration antagonism.This view not only respects the autonomy of will,but also takes the interests of the company into consideration.However,there are still potential practical flaws.First,regardless of the effect of equity change on the company,changing theregister of shareholders and industrial and commercial registration should be the legal obligations of the company after the equity transfer to the transferee,and it is a necessary procedure;second,if the mode is to meet the needs of the company If the company's articles of association or legal restrictions are the premise,but its expression is more inclined to show that the company is not the premise or the party who "only knows everything at last",which is very contradictory.Moreover,by combining the behind meaning of this view with the behavior of equity transfer,we can find that the company cares more about who will become the new shareholder than when the equity transfer will take effect.When the stock right is transferred to other countries,its real right attribute is quite obvious.It can be regarded as a special sales contract with the stock right as the object,but the stock right is different from the general thing,and the change of the stock right can not be realized by delivery or registration.Therefore,the author puts forward that in the process of performing the contract,we should try to take the payment of equity transfer as a sign of equity change.First,we should refer to the payment of general sales contract and the transaction habit of transferring ownership.Second,based on the principle of "who contributes,who benefits",the price paid by the transferee to the transferor is equivalent to replacing the status of the transferor's contribution,and fulfill the company in another form of contribution The investment obligation of the bank expresses the true meaning of wanting to join the operation and management of the company.After the transferee pays the equity transfer money,he should enjoy the equity value from the transaction and the ownership in the sense of ownership of the equity object,that is,the equity transfer takes effect.Of course,this is based on the premise that the transfer of equity meets the restrictions on the transfer of equity.In the case of damage to the preemptive right of shareholders,whether the equity changes and the effectiveness of the equity transfer contract also need to be further explored.