On The Good Faith Acquisition In The Transfer Of Equity By Shareholders Of Limited Liability Company

In 2011,the implementation of the Supreme People’s Court Provisions on Several Issues Concerning the Application of the Company Law of the People’s Republic of China(III)(hereinafter referred to as the Company Law Interpretation III)introduced the bona fide acquisition system in civil law into commercial law.The Public Judicial Interpretation III provides for the circumstances in which the case of good faith acquisition under the disposition of equity by the nominal shareholder,and article 27 provides for the acquisition of equity in good faith under the circumstances of a second sale.The Supreme People’s Court’s move was praised by scholars as "an initiative of judicial law making with great academic and analytical value".The purpose of the good faith acquisition system is to balance the interests of the original right holder and the assignee,to protect the transaction order represented by the assigned third party under the right of punishment,and to have the significance of the existence of the equity-friendly acquisition system in the field of commercial law,which focuses on efficiency and security and advocates commercial appearanceism.However,the construction of equity goodwill acquisition is a systematic project,involving the nature of equity,change mode,the choice of the appearance of rights and other basic settings,"Public Judicial Interpretation III" simply will be the goodwill of the acquisition of the nominal shareholders to dispose of equity and a share of two sales in the two cases,on the one hand,can not be coordinated with the existing corporate law system.On the other hand,the transfer of equity in commercial practice is complicated,and the provisions are too thin enough to bear the full judicial practice,while the uncertainty and disunity of the applicable rules further aggravate the difficulty of judicial practice determination.At present,the theory of equity goodwill acquisition in the theoretical circle is mostly focused on questioning the reasonableness ofequity goodwill acquisition,or on the German corporate law of equity goodwill acquisition as a benchmark,keen to transform equity goodwill acquisition.However,there is a lack of analysis of the practical problems of equity goodwill acquisition.To what extent the equity goodwill acquisition should be obtained by reference to the good intentions of property rights,what are the legal consequences of the equity bona fide acquisition,whether the scope of its application is limited to the two statutory circumstances,etc.,these are subject to discussion and study.This paper is divided into four parts.The first part of the problem is based on the existing law of China’s equity goodwill acquisition type as the starting point of research,analysis of the nominal shareholders disposition of equity and a share of two sales existing in the legislative and theoretical disputes,and then pointed out that China’s equity goodwill acquisition exists in the legislative delay,internal system is not coordinated and the application of the rules are not clear,we need to further systematize,detailed discussion.The second part is the theoretical basis for the equity goodwill.This part is based on China’s legislative practice,through the combination of relevant theories,analysis and confirmation of the nature of equity,the appearance of rights and change models,for the equity goodwill to obtain the follow-up discussion to lay a theoretical foundation.The third part is the equity goodwill to obtain the constituent elements and effect,this part through analogy property rights in good faith,in the balance of the original rights holders,transferees,the company’s interests on the basis of the clear equity goodwill to obtain the constituent elements,and combined with the characteristics of equity,regulate the effectiveness of equity goodwill,so as to establish the general framework of equity goodwill acquisition.The fourth part is the specific application of equity goodwill acquisition,this part,on the basis of the aforementioned chapter,analyzes the type of equity goodwill acquisition in judicial practice,in order to limit thescope and expansion type,in order to reduce the friction between China’s equity goodwill and the existing legal system,and appropriately improve the applicability of equity goodwill acquisition.