Research On The Division Of Joint Investment Equity In Divorce

As a kind of property,the equity jointly financed by husband and wife is bound to be divided upon divorce.However,due to the unclear definition of the nature of the jointly financed equity in China and the imperfect legislation,the paradigm of the division of the equity is very different.This article is based on the theory,from the analysis of the nature of the joint equity contribution of the husband and wife to the natural scope of its division,and on the specific division of the way to elaborate;at the same time,based on the empirical point of view to sort out the existing judicial practice of the normative problems,combined with the comparative law perspective,and put forward the relevant normative suggestions and countermeasures.The main part of the text is divided into four parts:The first part is a study of the theories underlying the division of jointly financed equity interests of spouses upon divorce.Firstly,through a review of the various views of the academic community,we explore whether the jointly financed equity interests can be shared by the spouses and the extent of the shared equity interests,summarise the core contradiction between the various theories as the conflict of interest between the family property law and the company law,and propose a model for determining the nature and extent of the division of the equity interests: on the basis of not violating the corporate personality,the spouses are allowed to share a single equity interest;the extent of the division of the equity interests upon divorce The scope of the division of the shareholding in the event of divorce should be determined by the provisions of the articles of association at the time of the contribution and take into account the specific claims of the parties.Secondly,the way of division is identified,and the specific path of the way of dividing equity is collated with the views of scholars: mainly the transfer of equity and the division of the value of equity.The nature of the transfer of equity should be determined as an external transfer or an internal transfer,depending on the provisions of the articles of association at the time of the capital contribution;the division of the value of equity can be divided into the payment of the price and the notion of dividing the value of equity.The second part,combined with the empirical analysis from the relevant cases,to China’s joint equity divorce judicial practice on the division of existing problems,and to find out the problems behind the system crux.Specifically,the lack of a single registration model for equity shares in China has led to a lack of clarity in the determination of the scope of the joint ownership of equity shares,and different judgments in the division of equity shares;a lack of practicality in the "conceptual division of equity value" approach due to the lack of regulatory protection;difficulties in the valuation of equity shares due to the lack of equity valuation standards;difficulties in the valuation of equity shares due to the lack of evidence of the value of equity shares.There are many obstacles in proving the value of equity,resulting in frequent litigation deadlocks;there are loopholes in the pre-emption right system,resulting in the risk of damage to the rights and interests of third party shareholders.In the third part,a comparative analysis is conducted to introduce and analyse the relevant overseas legislative experience and to draw inspiration for China’s legislation.The selected examples of foreign legislation are specifically French law,Japanese law,Korean law and American law.In the fourth part,we draw on the experience of comparative law and make suggestions to improve the existing judicial practice and the future direction of the system in China.Specifically,the following are proposed: the establishment of a model of joint ownership limited by the articles of association,the introduction of a new model of trust division of spouses’ equity,the standardisation of equity valuation,the improvement of evidence of equity value,and the introduction of a "designated company buy-back" to protect the pre-emptive rights of other shareholders.