The Research On Stockholder Right Alteration Of Limited Company

The specific time point of equity change is an important link in equity transfer.If it cannot be clearly defined,it will lead to a series of dilemmas such as shareholder qualification confirmation.Article 71 of the company law of China has made provisions on the transfer of shares of the limited liability company to the outside world,but when the shares will be changed has not been determined because of the longstanding confusion of basic concepts in the academic circle of China.This paper first distinguishes the concept of equity and shareholder's rights,which is the basis and premise of discussing the concept of equity change.Equity transfer is not as simple as the transfer of ordinary movable property.Generally speaking,the transfer of movable property only involves the rights and obligations between the transferor and the transferee.However,the real reason why the transferee in the equity transfer is willing to sign the equity transfer contract with the equity holder is not the acquisition of equity but the acquisition of shareholder identity.Based on this identity,the transferee can claim the identity right from the company,that is,the right to know,the right to receive dividends and so on.Therefore,the ultimate goal of equity transferee is to obtain the shareholder qualification of the company.However,once the equity transfer contract is signed,when will the effect of equity change be achieved and when will the transferee obtain shareholder qualification? These problems are not only different in theory,but also in judicial practice,which leads to the confusion of theory and practice.At present,there is still no conclusion on the concept of equity and shareholder right in the theoretical circle of our country.Some scholars even suggest that we should not make the distinction.Otherwise it will increase the burden of legal research.But it is because of the ambiguity of basic concepts that a series of theoretical dilemmas arise.Next,based on the separation of the concept of equity and shareholder's rights,this paper holds that equity is a kind of special thing,and shareholder's rights are identity rights that can be claimed to the company based on Shareholder's identity.Therefore,in the process of equity transfer,the change of shareholders' status is not marked by the transfer of equity ownership.At the same time,the equity transfer is not a static node,but a dynamic process,including the signing and performance of the equity transfer contract,as well as the company's procedures of changing the register of shareholders,the articles of association and industrial and commercial registration.In the absence of clear legal provisions,there are many disputes on which time point the ownership of equity changes and which time point the transfer of shareholder qualification occurs.Based on this,it is necessary to explore the mode of equity change to clarify when the equity change will be achieved.At present,there are three main opinions in the theoretical circle of our country.First,pure meaning doctrine,which holds that the equity change between the two parties,has been achieved synchronously when the equity transfer contract comes into effect.Second,modified meaning doctrine,which introduces the notice company procedure on the basis of pure meaning doctrine,causes the equity change when the fact notice of equity transfer reaches the company.Third,the formalism of creditor's rights holds that the performance of the contract between the two parties to the equity transfer cannot reach the result of equity change,but the result of equity transfer needs to be confirmed by external procedures,or delivery,or industrial and commercial registration of change,before equity change occurs.This paper holds that the transfer of stock rights is the behavior of shareholders' disposition of property,and its autonomy of will should be respected in principle.At the same time,in order to protect the human integration of the limited liability company,the equity change should occur when the equity transfer contract is fulfilled,other shareholders of the company give up the preemptive right and meet all the restrictive conditions of the articles of association for the external transfer of equity.Finally,to clarify the achievement time point of equity change,we need to analyze the difference between ownership change and shareholder qualification because the purpose of equity transfer is not to acquire equity this property,but to acquire the shareholder qualification of the company,and then to assert its shareholder rights to the company.This paper holds that the change of equity is the prerequisite for the acquisition of shareholder qualification.Only the subject who obtains equity has the right to require the company to confirm its shareholder qualification by issuing a capital contribution certificate,changing the register of shareholders or the articles of association.Therefore,it is necessary to distinguish between equity change and shareholder qualification,which not only guarantees the legitimate rights and interests of the transferee,but also becomes the basis for the implementation of equity acquisition system in good faith.