Research On Transfer Of Defective Shares

Disputes caused by defective share capital contributions by shareholders and subsequent equity transfers are common in practice,especially after the new "Company Law" is implemented and revised,the threshold for setting up companies is lowered,and illegal and irregular capital contributions are increasing.The main legal basis for regulating defective capital contribution and subsequent defective equity transfers is the "Judicial Interpretation of Company Law(3)",but the judicial interpretation still leaves some problems waiting to be resolved.This article starts with the case of trial practice,and puts forward some unresolved issues.Through empirical research and combining the principles of civil law and company law,the criteria for determining defective equity,the factors affecting the effectiveness of the contract for the transfer of defective equity,and the legal liability after equity transfer The types and methods of distribution of responsibilities have been studied with a view to enlightening the handling of such cases in judicial practice.In addition to the introduction and conclusion,this article is divided into three parts:The first part of this article is an overview of the basic theory of defective equity.First of all,it is clear that the academic circles' controversy on defective shareholdings mostly starts from a narrow sense(there are substantial defects in shareholdings).Secondly,according to the type of defect reason,the defective equity is divided into three categories,namely,false capital contribution,false capital contribution,and capital withdrawal.Finally,the characteristics of the defective equity are analyzed,that is,the investor of the defective equity shall be liable for its defective capital contribution,the exercise of the defective equity is restricted,and the defective equity is recoverable later.The second part of this article studies the issues related to the validity of the defective equity transfer contract.First of all,it introduces the four viewpoints(effectiveness theory,invalidity theory,compromise theory,revocable theory)thathave long been formed by the commercial law community.Secondly,the author combined with judicial practice to analyze the focus and key issues affecting the effectiveness of the defective equity transfer contract,mainly in the distinction between the effectiveness of the defective equity transfer contract and the effect of equity changes,the shareholder qualification of the defective funder(ie,the main element),and the possibility of defective equity Transferability(that is,the object factor),the identification and effectiveness of the transferee fraud(that is,the element of intention),and the impact of the capital system finally recognized the revocable view,but certain amendments are required,that is,the defective equity transfer contract Revocable,but not against a bona fide third party.The third part of this paper mainly explores the issue of shareholders' responsibility for capital contribution after the transfer of defective equity under the background of the subscription system.First,introduce the four points of view that the commercial law community has formed for a long time after the transfer of defective equity(the theory of full responsibility of the assignee,the theory of full responsibility of the assignee,the theory of joint liability of the assignee and the assignee,the subjective assignment of the assignee State Distinction Theory)Secondly,combining the current judicial practice and foreign legislation with reference to the analysis of the subject and method of liability liability for defective shareholding,affirming the assignee 's view of the subjective state disparity theory.Finally,the author further analyzes the rules for the exercise of the right to recover the defective equity transferee,and clarifies the specific allocation of responsibilities after the transfer of the defective equity transferee by refining the defective equity transferee's recovery rules,that is,to consider the special agreement between the two parties to transfer the stock The subjective state of the equity transferee and the assignment of the consideration of the defective equity to allocate responsibility.