Research On The Bona Fide Acquisition Of Equity In Limited Liability Company

The promulgation of the the third Judicial Interpretation on Company Law clearly stipulated the bona fide acquisition of equity for the first time in our country.Equity is a compound type of bundle of rights.It is similar in nature both to debt and property rights.It is difficult to compare them individually.The nature of equity cannot be used to judge whether the bona fide acquisition system can be applicable to equity.The bona fide acquisition system is built on legal transaction,and legal transaction for changes in rights must be established and valid,but the transferor lacks the full right of disposition.That is to say,there are no flaws in the legal transaction other than the right of disposition.Therefore,the effectiveness of the equity change agreement needs to be clarified first.The equity change agreement needs to meet the general requirements for the contract to be valid.Even if it violates Article 71 of the Company Law or the restrictive requirements on equity changes stipulated in the articles of association of the company,it does not affect the validity of the contract itself.The choice of equity change model involves the judgment of unauthorized disposal.Only by knowing the timing of the equity transfer in the equity change can we determine whether the person has the right to dispose of the act or not.This article argues that the change in equity should adopt an intentional model.The two parties to the transaction can achieve the change in equity if they agree to the change in equity.The equity transfer from the transferor to the transferee.Then if the transferor wants to transfer the equity again,it will be unauthorized disposal.The principle of commercial appearance is the concrete embodiment of the principle of trust protection in the rules of commercial law.When the appearance status is inconsistent with the real status,the appearance is used as the basis for legal effects.The essence of bona fide acquisition is to protect the trustee's trust in the appearance of rights,and it is necessary to construct a reliable appearance of rights for the equity.The function of the bona fide acquisition system is to improve transaction efficiency and maintain the dynamic security of rights,which is particularly important in the rules of commercial law in pursuit of efficiency.The bona fide acquisition of equity helps to construct a more efficient and reliable equity trading market.Article 106 of the Real Right Law provides for the goodwill acquisition of movable property rights and the goodwill acquisition of real property rights in the same time,but the institutional structure and theoretical basis of them are not completely consistent.This article argues that equity applies bona fide acquisition rules for movable property rights.In terms of constituent elements,objective aspects need to have a trustworthy appearance of rights.This article advocates the use of commercial registration as the appearance of rights.The subjective judgment of the good faith is that the transferee does not realize that the transferor has no right to dispose the equity without intention or gross negligence.In terms of scope of application,this article considers that it is not applicable to all occasions of equity change for the time being,but is limited to the express provisions of Articles 25 and27 of the third Judicial Interpretation on Company Law.In order to improve the deficiencies of existing regulation.This article advocates following German law to introduce an equity objecting registration system.At the same time,it is necessary to strengthen the relief to the original right holder to achieve a balanced interest.