Study On The Validity And Responsibility Of Transfer Of Defective Shares

As the combination of personal rights and property rights enjoyed by shareholders,it has a direct impact on shareholders’ rights to speak in the company and to control related affairs.Transfer of equity is one of the important issues of corporate law.In practice,different judgments about the same case often occur,which mainly focus on the responsibility undertaking and effectiveness of contract.In the Minutes of the 9th National Court Civil and Commercial Trial Work meeting,it was specially mentioned that the relationship among shareholders,companies,creditors and other stakeholders should be coordinated.Therefore,this paper focuses on the responsibility undertaking and effectiveness of contract,using the method of combining theory and practice,combing a large number of cases to reflect the actual problems.Defective equity generally refers to defective stock rights.According to the standard of defective equity,defective equity can be divided into three categories: investment defect,procedure defect and subject defect.For the behavior of "withdrawing investment",we should unify the cognition.We shouldn’t distort its essential attribute by literal interpretation,withdrawing investment should belong to the category of defective investment.As for the effect of transfer of defective shares,it should be screened according to the different types of defects.Concerning the validity of equity transfer contract with procedural defects,we can draw lessons from the German Company Law to distinguish whether the transferred equity is all or part,and distinguish the effectiveness of the contract from the actual performance in the judgment.On the effect of equity transfer contract with defective capital contribution,if there are multiple transfers of intermediate transferee,we can combine the theory of revocability and the theory of validity to refine in legislation.For the responsibility of the transfer of defective shares,we should distinguish the responsibilities of both parties to the transfer of shares to the company,to the creditors and to other shareholders.In practice,the recognition of the good faith of the transferee is too formalized.,we should determine a period of joint and several liability for both parties after the equity transfer so as to improve the risk awareness of the transferee.For the creditor’s liability,we should judge the order between the time of the creditor’s rights and the time of equity’s transfer;When there are intermediate transferees,whether the intermediate transferees have the appearance of real withdrawal of equity should be the basis of liability.In the responsibility of other shareholders,we should give the freedom of agreement to the transferor and other shareholders,and determine the responsibilities ofdirectors,supervisors and executives in legislation.