The Study On Shareholder Qualification Confirmation In Share Transfer Of Limited Liability Companies

Equity transfer is a frequent behavior in commercial activities.The company has this behavior since its establishment,and it is accompanied by the establishment,change and even disappearance of the company.China’s existing laws clearly stated that in the equity transfer,the company must issue a new investment certificate,the name of the new shareholders into the list of shareholders,and complete the change registration.However,it is still uncertain when to determine the ownership of equity,so the dispute cases of equity transfer caused in practice continue to emerge.Moreover,with the continuous development of the commercial legal system,there are more and more types of shareholders in the company,so the objects and methods of equity transfer are becoming more and more complex.This thesis mainly examines the issue of shareholder qualification confirmation in equity transfer in the case of defective capital contribution,“one share and two sales” and anonymous capital contribution,and proposes targeted solutions.According to the current law,even the assignor with defective capital contribution still has shareholder qualification,and the equity itself is transferable.However,the existing problem is the state of the equity transfer contract due to the defects in the subject matter,and whether the transferee can obtain the equity.Although in the current law,the investment responsibility of the assignor and the responsibility of the assignee are stipulated respectively,there are no clear provisions on the identification of defective equity,the identification of the effectiveness of the transfer contract of defective equity and whether the assignee can obtain complete equity.These problems become unavoidable in determining whether the assignee of defective equity has shareholder qualification.There are about the validity of “one share two sale”,although the existing law has corresponding explanation,but there are still some problems do not give a clear conclusion.The first is the ownership of equity,the problem is to determine whether the seller has “unauthorized disposition” premise,followed by the transferee of equity on the goodwill of the standard is not clear,and the existence of these problems makes the equity can be applied to the bona fide acquisition system becomes a question.In the case of anonymous investment,there are some contradictions between the provisions of the current judicial interpretation.The different criteria for the qualification of the shareholders of the prominent investors lead to the vague positioning,but also affect the qualification of the shareholders in the equity transfer under the condition of anonymous investment.In view of the above problems,this thesis puts forward the corresponding views from the following aspects : First,in the transfer of defective equity,by recognizing the shareholder status of the transferor of the defective equity,and from the principle of commercial appearance to recognize the transferability of the equity;according to the three theories of the validity of the equity transfer contract : effective theory,revocable theory,invalid theory,try to consider from the perspective of encouraging commercial transactions,using effective theory,and think that although the subject matter is flawed,but does not affect the defective equity inheritance,in order to identify the assignee has shareholder qualifications;2.In view of the problems existing in the “one share two sale”,the attribution of the transfer equity is determined by whether the first buyer has completed the registration;if the first assignee has completed the registration,the equity belongs to the first buyer;at this time the transferor dispose of the “equity” is established “unauthorized disposition”;on the contrary,under the premise that the first transferee has not completed the registration,the equity transferor does not establish “unauthorized disposition” for the equity transaction of the second buyer.Secondly,referring to the standard of goodwill in chattels,and taking the goodwill time from the entry into force of the contract to the transferor application for company change registration as the third party,we comprehensively determine whether the second buyer can apply the goodwill acquisition system,and ultimately determine the ownership of equity.3.For the problem of dormant investment,on the basis of discussing the basic theory of dormant shareholders and the legal relationship between dormant investors and other subjects,the qualification of dormant investors is recognized from the substantive elements,and the qualification of shareholders is judged by whether the dormant investor actually performs the obligation to subscribe to the company.Then on the dormant investor’s “equity” transfer of shareholder qualification issues,through its divided into equity transfer of internal and external transfer of two cases were discussed,discusses how to determine the different circumstances of equity transfer behavior is effective,and discusses the shareholder qualification should be inherited by who.