On The Assumption Of Supplementary Liability After The Transfer Of Defective Stock Rights

The defective share should be understood in a broad sense.The three main principles of capital contribution are referred to as defective capital contribution,including the failure to fulfill the obligations of capital contribution,incomplete fulfilling obligations of capital contribution and escaping capital contributions.The defective shares include:the unfulfilled capital contribution obligation or the unfulfilled capital contribution obligation,and the defective equity caused by the withdrawal of capital.Regarding the effectiveness of the defective share transfer contract,there are four viewpoints in academic circles:absolute invalidity,differentiated treatment,revocable doctrine and absolute efficiency.The most convincing part is revocation.The basis of the original shareholder’s liability for complementation and the liability for compensation lies in the theory of subrogation right and the theory of Third Party Infringement of creditor’s rights.The basis of the liability for complementation and the liability for compensative compensation lies in the principle of the agreement between the rights and interests of the transferee of defective shares.The Supreme People’s Court issued the provisions on Several Issues concerning the application of company law(three),hereinafter referred to as the judicial interpretation of company law(three),of which nineteenth systems stipulate the obligation of complemental liability after the transfer of defective capital contribution.The provisions of the following problems:the definition of the problem about the transferee shareholders or assignee for the defective equity knowing the subjective state of mind,judgment of the "company law judicial interpretation(three)" article thirteenth,nineteenth of the scope of the problem,the "company law judicial interpretation(three)" nineteenth cause the rights and obligations of the imbalance.The issue of the imbalance of rights and obligations is the focus of this study.After the transfer of defective equity to complement the responsibility,common law and civil law that the original shareholders liable for the assignee if It goes without saying that,assume responsibility,common law is generally believed that the bona fide assignee is not liable,the company law in continental law countries generally do not consider the assignee’s subjective state assigns to bear joint and several liability.The legislation of our country not only learn rules about malicious assignee shall assume joint liability in civil law,but also from the Anglo American law system on the transferee in good faith and not take effect on the responsibility of legislative consideration,but not the distribution of rights and obligations of defective equity transfer of both the reasonable designation,may appear unbalance between rights and obligations.The suggestions on the "company law judicial interpretation(three)" nineteenth revised and improved to knowingly and complete shareholders registration for the transferee shall bear the liability of the premise;to the principle of equal value,rights and obligations as the principle,reasonably determine the ultimate responsibility of defective equity complement responsibility;and expand the scope of the judicial interpretation.