A Study On The Effectiveness Of The Transfer Of An Equity With Period Benefits And The Party Of The Contribution Responsibility

The company’s capital system was modified from Paid-in Capital System into a Subscribed Capital System in 2013,which gave shareholders the right that subscribed but not paid-in the capital when a company is established.Those right was called “period benefits” and the equity with period benefits appeared.Although the subscription capital system can stimulate market enthusiasm and improve the efficiency of capital utilization,the lack of related systems had also caused conflicts between the period benefits and the rights of the company and creditors.There are many disputes in the theory and practice of the responsible subject after the transfer of an equity with period benefits and thus occur the situation that different courts have different rules on this problem,even though the cases were nearly same.In order to improve judicial credibility,protect the interests of all parties as much as possible and ensure the efficiency of commercial activities,discussing the responsibility subject after the transfer of an equity with period benefits and constructing the corresponding system has become an important part of perfecting our country’ s corporate legislation.This thesis contained five parts.The first part tries to picture and delimit the equity with period benefits,and then analyzes the relationship between it,shareholder qualification and contribution responsibility,which want to build a foundation of the following discussion.The second part first sorts out the current theoretical disputes over the validity of the transfer contract which is related to the equity with period benefits,and concludes that there has the theory of invalidity,validity and compromise.Compromise theory admitted the transferability of the equity with period benefits and it allowed the transferee the right of revocation if there is a flaw in its validity,so it can balance the interests of all parties;secondly,it discusses the possible validity reason of an equity transfer contract with an equity with period benefits as the subject matter.Generally,the aforementioned equity transfer contract will not be invalid or the validity of because of the equity does not fully paid-in in unexpired contribution period.And it is not appropriate to revoke the contract on the grounds of misunderstanding,but relief should be given when the freedom of expression of the transferee is improperly interfered with,but it is generally limited to active fraudulent acts.Finally,by analyzing the current theoretical viewpoints on the equity change model,it is pointed out that the pure libertarian model ignores the will of the company,the debt formalism is too contrary to the principle of autonomy of will,and the revised libertarian model balances the autonomy of private will and the will of the company,which is more reasonable.The third part analyzes the judicial cases concerning the unexpired contribution equity after the transfer since the implementation of the subscribed capital system and listed several representative cases.It is concluded that there are currently three main judgment results on the above-mentioned issues in the practical,and even those same results,the applicable rules or the argumentation ideas are also different.So,it is pointed out that the issues studied in this paper are controversial in practice and need to be resolved urgently.At the same time,the thesis interprets the law applicable to the listed cases and points out that China is currently in a legislative blank for relevant issues,as the existing law cannot apply to the issue researched in this thesis.Afterwards,by comparing the legislation of civil law system and common law system in similar situations,this part points out that China can properly draw lessons form the legislative experience of the civil law system in similar situations when constructing the regulations related to the relevant issues.The fourth part firstly sorted out the theoretical controversy regarding the contribution responsibility after the transfer of the equity with period benefits,and proposes that the contribution responsibility should be distribute to the transferee through deconstructing the contribution responsibility and the principle of the freely transferring of equity.The general principle is that the transferee should bear the contribution responsibility.The last part proposes few suggestions to improve the system of the transfer of unexpired contribution equity,which is intended to ensure the full commitment of capital contribution obligations and the efficiency of commercial behavior,thus proposing that build the “right to consent” of the company system,the call system,and the responsibility for the front.