Research On The Change Mode Of Equity In Limited Liability Company

The model of equity change is a very valuable link in the field of civil law right change mode,and the study of the change mode of equity can not only enrich and perfect the theory of the change mode of rights in civil law,but also guide the practice and reduce the disputes caused by thetransfer of equity.Although the Company Law of the People's Republic of China clearly stipulates that the company needs to issue a new capital contribution certificate,change the register of shareholders and change the business registration in the process of equity transfer,it is not clear at what point in time as the effective point of the equity change,which also leads to the proliferation of equity transfer disputes arising in practice.Therefore,the discussion of this issue is particularly necessary.This paper takes the theoretical basis of equity change as the starting point,On the basis of defining the concept and nature of equity,it is clear that the transfer of equity should be the transfer of the whole and not of a certain power.And in the process of equity transfer,we should distinguish between the change of equity and the contract of equity transfer,The former is a dispositive act that directly causes equity to change between parties.while the contract of equity transfer belongs to the burden act,which only produces the creditor-debt relationship between the parties.The external transfer of equity provided for in article 71 st,paragraph 2nd,of the Companies Act shall be subject to the consent of a majority of the other shareholders and the preemptive right of other shareholders to the transferred equity,will only constitute an obstacle to the effectiveness of the dispositive act,and shall not constitute an obstacle to the validity of the equity transfer contract.According to whether some formal elements need to be fulfilled,the model of equity change discussed by the current practical circles and theorists in China can be divided into two categories: meaning model and formalism mode.The meaning model holds that the change of equity changes from the date of entry into force of the equity transfer agreement,and the assignee can obtain the equity if it does not have to fulfill any publicity procedure.The emphasis is on the convenience of commercial transactions,but it ignores the important position of the company in the change of equity,now it has been abandoned by practice.The revised meaning model developed in this model also holds that the change of equity is effective from the date of entry into force of the equity transfer agreement,but only after notifying the company,the assignee can claim equity against the company.And the company has the right of objection to the change of equity.The author clarifies the relationship between the assignor,the assignee and the company in the process of equity transfer by defining the adversarial effect of the change of equity.However,the construction of the notification procedure is vague,and the right of dissent given to the company has unjustifiably interfered with the freedom of shareholders to transfer equity.The formalism model holds that the entry into force of equity change,in addition to the entry into force of the equity transfer contract,should also fulfill some kind of "delivery" and "registration" procedures.However,it should be said that the actual exercise of shareholder rights by the assignee is the criterion for determining the change of rights,and the logic of the change of rights is improperly reversed,or that the registration date as the time node of the change of equity is not in conformity with the literal understanding of the law.In essence,the concept of equity embodies a legal relationship established between a particular party,which is similar to the legal relationship of creditor's rights.Therefore,the structure of China's equity change model can be based on the current law level,reference to the creditor's right to construct.On the one hand,the company law provisions do not give the register of shareholders the status of entry into force,it is not part of the establishment of the registration of rights.The change of equity should have the effect of the change of rights when the parties agree on the change of rights.On the other hand,because of the particularity of the change of equity,the legal relationship between shareholders and the company is much more complicated than that between creditor and debtor.Only by registering the assignee on the registerof shareholders can we confront the company and exercise equity.and the registration of business and industry has the effect against the third party.Therefore,The equity change model should adopt "meaning + double registration countermeasure mode",and from the point of view of literal interpretation and system interpretation,we can also draw this conclusion.And the change of equity in the case of "one share soldtwice" has its own particularity.The assignee may acquire equity in good faith under the conditions of satisfying the right of the transferor,the goodwill of the assignee,the reasonable price and the registration of industrial and commercial persons.Unlike the general situation of industrial and commercial registration as the countermeasure of equity change,in the case of bona fide acquisition of equity,industrial and commercial registration should be the effective element of equity change.