Research On The Civil Liability Of The Transferor Of Defective Equity To The Creditor

Defective equity transfer has always been a hot topic in the field of corporate law and even civil and commercial law.Since the amendment of the Company Law and the fundamental change of the company’s registered capital system,the problem of defective investment of the company’s shareholders has become more prominent,and the single restriction conditions of equity transfer have further aggravated the defective equity transfer.However,there is no corresponding perfect supporting system for the protection of the interests of creditors of the company,especially the lack of perfect provisions on the liability of the two parties to the transfer of defective equity to creditors,which hinders the protection of the legitimate rights and interests of creditors.First of all,creditors cannot timely understand the defective contribution and defective equity transfer situation of company shareholders,and their claims to defective contribution shareholders cannot be timely exercised,and the way to seek relief is not perfect.Secondly,articles 13 and 18 of the Judicial Interpretation of Company Law in our country only provide a simple and principled regulation of the liability of defective investment and the liability of defective equity transferring parties,which makes it impossible to clarify the liability division of the creditor of the parties to the defective equity transferring.This paper adopts the case analysis method,starting from the judgments made by local courts,and selects some cases in which the transfer of defective equity damages the interests of creditors.Through the analysis,it finds that the liability of the two parties to the transfer of defective equity is not clearly divided and the law is difficult to apply.After comparing the major case samples,it is found that the courts in different places often have completely contradictory judgment results in the trial of similar cases.There are big differences in the identification of the scope of "failing to perform or fully perform the investment obligation",the judgment of the "bona fide" transferee,the liability of the transferee who transfers the equity before the expiration of the investment period,the correlation between the formation time of debt and the liability of the defective equity transferor,and the attribution of the liability of the parties after the transfer of defective equity.There is no unified standard.As for the problems in judicial adjudication,this paper makes an in-depth analysis of relevant cases,not only summarizes the focus of disputes from judicial practice,but also analyzes the problems existing in the liability of the parties to creditors in the transfer of defective equity from the theoretical level.After analyzing the problems existing in the creditor liability of the two parties to the transfer of defective equity,this paper resolves the problems reflected in the focus of disputes one by one,and puts forward suggestions to improve the existing legal provisions.The liability division of both parties shall be consistent with the consequences of "failure to fulfill or fully fulfill the contribution obligation";The liability division of both parties of the equity transfer which damages the interests of the creditor should follow the principle that the transferee should bear the supplementary compensation liability,and the transferor and the transferor should bear the liability jointly only when the time limit of investment is abused.As for whether the transferee of defective equity is informed or not,it clarifies relevant standards in the way of enumerating legal articles,and improves the provisions of Judicial Interpretation of Company Law(III).As for the liability division of the two parties to the transfer of defective equity,it is again clarified that the main rule is that the transferor of defective equity bears the supplementary liability and the informed transferee bears the joint liability.The above measures can balance the interest relationship among the transferor,the transferee and the creditor.