| In the company law of China,the withdrawal system of shareholders of limited liability company is mainly reflected in three aspects: the system of share transfer of limited liability company,the system of share repurchase of dissenting shareholders and the system of judicial dissolution of limited liability company.Equity transfer and repurchasing of dissenting shareholders are the most common ways for shareholders to withdraw from the company.The case of Mr Wang v.Xinhua company’s investment dispute is just in the form of equity transfer,which makes Mr Wang quit the company finally.The main focus of the dispute in the case is the plaintiff Wang ’s shareholder qualification determination,the effectiveness of the agreement,and the legality of Wang’s request to return the cooperation fund.In the principle of shareholder qualification,the principle of externalism meets the needs of current legislative principles and judicial practice.Among them,the identification of the shareholders’ qualification of defective capital contribution should also follow the principle of appearance.While restricting the rights of its shareholders,the shareholders’ qualification of defective capital contribution should not be arbitrarily deprived.In accordance with the principle of externalism,the validity of equity transfer contract and the validity of equity change shall be determined respectively.In the determination of the validity of equity transfer contract,the principle of establishment and effectiveness shall be adopted,and the standard of approval and registration and effectiveness shall be the exception.In the determination of the validity of equity change,the principle of internal registration and effectiveness shall be adopted The attitude of combining external registration with adversary.The equity transfer of shareholders with defective capital contribution also complies with the general equity transfer standard,but before and after the transfer,they need to perform the obligation of notification and prudence according to the relevant laws and regulations to prevent fraud or capital withdrawal.In the dispute of share repurchase,the court needs to review the legal conditions of dissenting shareholders in accordance with Article 74 of the company law,and check whether it meets the legal procedures.In this case,the plaintiff registered the change in the register of shareholders between the two equity transfers,and Wang was a defective shareholder,but it met the principle of outward appearance of shareholder qualification and the criteria of shareholder qualification.As for the validity of the agreement,we shouldfully respect the party’s autonomy of will and recognize it as legal and effective on the premise of conforming to the appearance conditions of the contract form.The agreement in this case should be recognized as the agreement to terminate the equity transfer agreement and investment contract,rather than the repurchase clause.Therefore,the equity buyback clause should not be applied,but the contract law should be applied.The defendant Xinhua company should refund the cooperation fund to Wang.However,according to the principle of equal rights and obligations under the contract,it is reasonable to deduct the project loss from the returned Cooperation Fund. |
