Research On Legal Issues Of Defective Equity Transfer In Limited Liability Companies

In combination with the specific judicial practice,it is not an individual case to see the problem of shareholders’ defective investment and subsequent equity transfer.In particular,after the revision of the Company Law in China,the threshold for the establishment of companies is relatively low compared with the past,and various illegal and illegal investment behaviors are on the rise.As the phenomenon of defective capital contribution exists objectively,the defective capital contribution equity also comes into being,which provides the development space for the transfer of defective capital contribution equity.In judicial practice,the court mainly takes "Company Law Interpretation(III)" as the basis to regulate shareholders’ defective capital contribution and subsequent equity transfer issues.Because this judicial interpretation stipulates is relatively simple,however,the flaws capital contribution shareholders qualification,transfer of defective capital contribution after contract effectiveness and transfer responsibility rule did not make clear a regulation,also does not have fully considered how to balance the interests of the shareholders,and creditors,scholars debate unceasingly,not form a unified understanding and the conclusion,As a result,the judgment of different courts in different places is different in the same case,which will seriously affect the unity and prestige of the judiciary.This paper takes the limited liability company as the specific research object,and carries out the analysis,discussion and research on the relevant legal issues involved in the transfer of defective investment equity.This paper consists of six parts and four chapters.The first chapter elaborates the theory of the defective capital contribution equity transfer system.Firstly,it analyzes and discusses the concepts of the defective capital contribution and the defective capital contribution equity as well as the defective equity transfer.Second after for defining the relevant concepts,also discusses the flaws capital contribution of shareholders is a hot dispute with shareholder qualification,in this paper,the flaws capital contribution of the shareholders of the qualification to be sure and overview,attitude of the shareholder qualification question is follow-up study flaws capital contribution,the basis of equity transfer responsibility It also serves as a link between the preceding and the following for other related issues in this paper.Thirdly,the possibility of the transfer of the defective investment equity is explored,focusing on the impact of the transfer on the company and the company’s creditors.Finally,this part also draws lessons from the foreign beneficial provisions on the defective equity transfer system,hoping to improve the defective equity transfer system in China.The second chapter analyzes and studies the problems and causes in the process of the transfer of defective investment equity.Firstly,it discusses the contract validity which is the most noticeable issue in the legal relationship of the transfer of defective capital equity.In terms of the contract validity of defective capital equity,the academia has not reached a consensus.At present,there are four main theories: the first theory is the valid theory;The second theory is the theory of nullity;The third theory is the doctrine of distinction;The fourth theory is revocable.In this paper,the advantages and disadvantages of the above theories are analyzed and pointed out,so as to clarify that the revocable theory is the most reasonable among the four theories.Second,the flaws capital contribution in the event of transfer of equity behavior involves responsibility,also means that when the defective equity shall be transferred,shall be on analysis and discussion on how to divide the legal responsibility,which covers many aspects of the blame of problems,including the responsibility to enrich the company capital and for the rest of the shareholders’ liability for breach of contract and liability for the company’s creditors,etc.This is the core issue discussed in this paper.Finally,this chapter discusses and analyzes the causes of the transfer of defective capital contribution shares.Based on the current legislative situation and judicial status of defective capital contribution shares in China,it elaborates the causes of the disputes arising from the transfer of defective capital contribution shares in detail,and summarizes the defects of China’s existing system in this respect.In this paper,the third chapter is the flaws capital contribution equity transfer under the referee instance study,types of disputes first collect the flaws capital contribution equity transfer a large number of cases of disputes in judicial practice,will be around,observes the case in recent years,finally selected 82 cases in this paper,as an important research material,and sorting of the 82 cases;Secondly,the paper sorts out the dispute focus and judgment thinking of the cases involving defective capital equity,and analyzes the judgment views of the court in handling different types of cases.Finally,the paper summarizes the existing problems in China’s judicial practice,which lays the groundwork for putting forward operable judicial suggestions.The fourth chapter of this paper,based on the research and analysis of the first three chapters,puts forward suggestions to improve the legal system of the transfer of defective investment equity in China.First of all,it puts forward suggestions on how to determine the validity of the contract in the process of the transfer of defective investment equity,and what responsibilities the parties to the transfer should bear respectively.Secondly,it gives suggestions on the responsibilities of the company,other shareholders and creditors after the transfer,and also gives suggestions on what role the company should play in the defective investment equity.Thirdly,after fully considering the subjective and objective aspects of the assignee itself,the necessary judicial relief is given to the bona fide assignee,so as to ensure the best balance between efficiency and fairness.Finally,suggestions are put forward to improve the disclosure system and supervision of shareholders’ capital contribution information in the existing legal norms and judicial practices.It is hoped that the suggestions in this paper will be helpful to improve the legal system of defective capital contribution equity transfer in China.