On Abstraction Of Share Transfer

The mechanism of share transfer plays a key role in modern corporate law.With the development of socialist market economy,the number of equity transaction surges.As a result,the disputes related to share transfer account for a super majority of all coproate disputes.In all disputes related to share transfer,there is one issue in common:at a certain moment,who is the owner of a corporation,holding the legal title of shares?In this sense,the dispute related to share transfer also relates to many other issues like diagnosis of a shareholder,capital subscription and capital increase.The abstraction of share transfer is directly related to the effect and validity of share assignment,which could make the assignment of shares independent from share transfer agreement,the assignment's fundamental relationship,and form a stable order of equity transaction.Meanwhile,with the help of abstraction of share transfer,the separation between the two effects of share transfer,"obligation" and "property",will accrue naturally,so that each element of share transfer can be assigned to the right track according these two effects.Without a deep navigation in the abstraction of share transfer,researches on the validity of share transfer agreement,the relationship between record shareholder and beneficiary shareholder and the moment of share assignment will make no sense.This thesis will provide a complete picture of the ion of share transfer by illustrating its theoretical foundation,the costs and benefits of different ways of share return,and the systematical value of this theory,aimed at demonstrating the necessity of the abtraction of share transfer.Except for introduction and conclusion,there are three charpters in this thesis,whose general contents are as follows:Charpter 1 is about the key argument of this thesis.I first propose the issue of the abstraction of share transfer by analyzing a judgement made by Hubei High Court,and move to explain the basic structure and logic of the abstraction of share transfer.I then analyze the abstraction of share transfer from the aspect of legal methodology,clarifying the relationship between legal effect,legal relationship and legal authority(like rules).After going through the first charpter,readers can know the key problem that this thesis is set to solve,understand the basic legal effect of share transfer and outline the main arguments of the abstraction of share transfer.Charpter 2 uses an approach of law&economics to justify the ion of share transfer by analyzing the costs and benefits of different ways of share return after the share transfer agreement is invalidated,rescinded or terminated.I first introduce the structures and characteristics of the two ways of share return respectively.Then I propose the two kinds of costs that need considering in this course:transaction cost and agency cost.In the second and third sections,I evaluate the benefit of both abstraction and its opposite,from the aspect of "adaptability in corporate law system" and "ability of protecting a third party" respectively.Actually,compared to the return of other properties,the return of shares concerns agency costs,procedures in coporate governance and other specific factors.And the so-called "third party" or"stakeholder" will be more diversified.As a result,the social order based on personal property is even more complex.It is the existence of all the foregoing special issues that finally paves the way for abstraction principle,which is highly controversial in traditional civil law.Charpter 3 is about the position of abstraction principle in the whole coporate system and the application of abstraction of share transfer.I first analyze the defects in the existing mechanism of share transfer and then propose a systematical solution,namely separation between the two effects of share transfer.Theoretically speaking,the biggest problem of such separation is that it is far from everyday life and hard for any layman to understand.Furthermore,the separation mechanism hardly outperforms its opposite in function,unless we take the principle of ion into consideration.To add to what is mentioned above,I argue that we should apply the principle of abstraction to share transfer,which renders the separation between the two effects regarding "obligation" and"property",so as to assign each element of share transfer to where they should be and recreate a scientific share transfer system.That completes my demonstration on the systematical value of abstraction of share transfer.Based on this,I illustrate the three major application scenarios of ion of share transfer:correcting the judicial reasoning in disputes involving termination of share transfer agreement,limiting the expansion of good faith acquisition of shares,creating a new route for share return.At the end of this charpter,I also demonstrate the abstraction's compatibility in the general system of civil and commercial law in China.