Research On Identification Standards Of Bona Fide Counterpart In Company Law

The bona fide counterpart is a core concept about the transaction security protection system.With the rapid development of market economy,commercial transactions are becoming more and more frequent,the status of bona fide counterpart in company law is becoming more and more prominent,and it is more and more important to make reasonable determination of bona fide counterpart aiming at transaction security protection.The bona fide counterpart has no uniform and clear provisions in the company law,and its application is scattered in different normative systems of company law,therefore,the intention of this paper will also be based on different normative systems,select the two most typical and controversial cases as representatives,and try to refine the universal principles and standards that can be applied to the identification of bona fide counterparts in company law.In the structure arrangement of this paper,the first chapter mainly analyzes the background paving and existing problems of bona fide counterpart identification;the second chapter and the third chapter,respectively,take the bona fide counterpart in the two cases of "company non-related guarantee" and "anonymous capital contribution" as examples,and demonstrate the application of bona fide counterpart in the norm,It also summarizes the criteria for the identification of bona fide counterpart in the specific system;the fourth chapter puts forward some suggestions for perfecting the criteria for the identification of bona fide relative persons.The specific unfolds are as follows:The first chapter gives an overview of the bona fide counterpart identification in the company law.First of all,the concept,significance and type of bona fide counterpart are briefly described,and it is pointed out that the bona fide counterpart is mainly embodied in three cases of company law,that is,the bona fide counterpart under the condition of limited representation,the bona fide counterpart in the case of registration,and the bona fide counterpart in the case of the revocation of the resolution,and Should start with the specific normative system of these situations,secondly,the author makes a concrete analysis of the present situation of the identification of bona fide counterpart,and obtains the three criteria for the identification of bona fide counterpart in academic circles: the standard of gross negligence,the standard of duty of care and the criterion of distinction,and there are three kinds of identification situations in practice: Fulfill the obligation of reasonable care and fulfill the obligation of substantive examination.Finally,through the narration of the status quo,the author summarizes the two core problems identified by the bona fide counterpart: whether the counterparty should examine the obligation and what kind of examination obligation should be fulfilled,that is the source and boundary of the examination obligation.The second chapter is the study of the identification standard of bona fide counterpart in non-related guarantee.Firstly,this paper discusses the relationship between the bona fide counterpart and the duty of examination in this case,and clarifies the starting point of judging the duty of the relative person of the transaction as the criterion of bona fide judgment,and secondly,from the perspective of the present situation of judicial determination,discusses the judgment differences in bona fide determination and the judgment of the examination obligation in the way of empirical analysis Taking the examination obligation of the relative person of the transaction as the foothold,this paper demonstrates the source and boundary of the relative person's examination obligation from the theoretical angle of the legal theory of the recognition and the empirical angle of the judicial decision,and concludes that a distinction should be made between the general transaction counterpart and the special transaction counterpart,and the general transaction counterpart should have the obligation of formal examination The counterpart of a transaction with a special identity has a higher obligation to censor.The third chapter is the study of the criteria for the identification of bona fide counterpart in the case of anonymous capital contribution,which is embodied in the transfer of equity by the nominal shareholders themselves.This chapter first discusses the application of the system of bona fide acquisition under such circumstances and one of its elements-the importance of the good faith of the assignee,clarifies the reasonable duty of care of the relative person as the starting point,and secondly,takes the determination of the judicial status quo as the unfolding,This paper discusses the determination of bona fide counterpart in the case of nominal shareholder's self-transfer of equity and the judgment standard of reasonable duty of care,and demonstrates the standard of identification of bona fide counterpart through the case,and finally,with the reasonable duty of care of the assignee as the foothold,demonstrates the source and boundary of the reasonable duty of care of the counterparty to the transaction,The conclusion can be applied to the conclusion in the case of non-related security that,for the counterpart of the general transaction,the basic formal examination obligation should be fulfilled in order to constitute goodwill,while for the counterpart of a transaction with an internal identity or belonging to a particular industry,it should be given a higher duty of care.The fourth chapter puts forward two criteria for perfecting the determination of bona fide counterpart in company law.First of all,the principle of reasonable examination of obligations,that is,bona fide counterpart in company law should have the obligation of reasonable examination.There are three reasons for this: 1.Based on the conclusion of the typology case analysis.In this paper,two kinds of representative cases are given,and the sources and boundaries of the reasonable examination obligation of the counterparty of the transaction are deduced respectively.2.Its own jurisprudence based on the system of goodwill.The system of goodwill itself gives a certain duty of prudent attention to the counterparty of the transaction.3.Realistic experience based on commercial transactions.Under the background of credibility,the connotation of goodwill varies according to the intensity of credibility,commercial transactions involve more stakeholders,and the counterparty should be more cautious,such as not requiring the duty of the counterparty to examine the obligation of the person directly presumed to be bona fide,is not conducive to balancing the interests of the company and beyond.Secondly,the principle of distinction should be applied to the judgment of bona fide counterpart.Based on the different levels of access to information and examination of commercial transaction subjects,the judgment criteria of bona fide counterparts should be distinguished,which are divided into three kinds: 1.The standard of identification of the general bona fide counterpart-the obligation of formal examination.That is,the general bona fide counterpart should have the obligation of formal examination,but the obligation to examine the form is only the principle of adjudication applicable to the decision,the specific degree of examination of the obligation,but also according to the specific circumstances of the specific determination.2.For counterparts and specific industries with intra-company identities,there should be a higher duty of review than in general bona fide counterparts,as corporate insiders have the advantage of obtaining transaction information,while specific industries,such as financial institutions,have higher censorship and industry requirements than ordinary people.3.In the case of special transactions,there should also be a higher obligation to review than the general human being,such as the increase or decrease of registered capital,such cases are relatively complex,as the case may have its transaction particularity and legal compulsion,so this article can also be used as a bottom situation.