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What types of equity transfer disputes include

Liu* Jiangxi Yichun Equity advisory 2020.09.08 11:28:44 378 people read

Equity transfer What types of disputes are included

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Hello, my answer to the question of what types of equity transfer disputes include is as follows. The cases related to equity transfer can be specifically divided into the following types of disputes:
1. Disputes over the equity transfer contract between the two parties to the transfer. For example, request to perform the transfer contract, request to pay the equity transfer payment and compensate for losses (or pay liquidated damages), or request to terminate the transfer contract, request to determine that the transfer contract is invalid, and so on. In a word, this kind of dispute is mainly applicable to the relevant "equity transfer" cases in the Contract Law, which can be specifically divided into the following types of disputes:
1. Disputes over the equity transfer contract between the two parties to the transfer. For example, request to perform the transfer contract, request to pay the equity transfer payment and compensate for losses (or pay liquidated damages), or request to terminate the transfer contract, request to determine that the transfer contract is invalid, and so on. In a word, this kind of dispute is mainly subject to the relevant provisions of the Contract Law, and the case trial should also take into account the special provisions and principles of the Company Law.
2. Litigation disputes involving the protection of the preemptive rights of other shareholders within the company. For example, the second paragraph of Article 71 of the new Company Law stipulates that when a shareholder transfers his or her equity to a person other than a shareholder, the shareholder who disagrees should purchase the transferred equity. However, as for how to determine the purchase price, whether to use the price of the external transfer contract or to re evaluate the company's net assets to determine the price, there is a great dispute in practice, and it is necessary to unify the understanding as soon as possible. For another example, after the performance of the equity transfer contract, other shareholders of the company claimed that the contract was invalid and requested to exercise the right of first refusal because the transferor failed to perform the obligation to inform other shareholders of the company. Some of these cases believed that it should first review whether there was agreement in the articles of association. If there was agreement in the articles of association, it should be handled according to the agreement; When there is no agreement in the Articles of Association, a reasonable time limit shall be considered. When the change in the register of shareholders or the industrial and commercial registration exceeds a certain time limit, other shareholders may consider not supporting the exercise of the preemptive right.
3. Disputes arising from the transfer of defective equity contributions. If the transferee is still accepting the equity after knowing that the transferor's contribution is defective, it shall bear joint and several supplementary liability for the part of the insufficient contribution; On the contrary, if the transferee is unaware of this, it shall not be liable, and has the right to request cancellation of the equity transfer contract on this ground.
4. Litigation cases arising from the transfer of equity by dormant or apparent shareholders. This kind of case is relatively complicated, and the relationship between dormant and apparent shareholders is contractual and relative. Under normal circumstances, the agreement between the dormant shareholders and the apparent shareholders cannot oppose the company and other shareholders of the company, nor can it oppose the third person.
5. Disputes over bona fide acquisition of equity. After the company's equity is not transferred, the transferee claims to acquire the company's equity in good faith. When hearing such cases, we should not only consider the characteristics of the company's legal relationship with appearance publicity, but also pay attention to the basic principles of the bona fide acquisition system, and protect the legitimate rights and interests of the company's shareholders and bona fide third parties according to law.

2020-09-08 11:29:44 Reply
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According to your answer to the question below, equity can be obtained by establishing a company, subscribing to a company's capital contribution or shares, receiving equity, inheriting equity, etc. This is a series of complex legal acts. For various reasons, there will be many flaws or irregularities, which will lead to equity confirmation disputes. The dispute over equity confirmation under the subject matter of this case, according to the interpretation of the Handbook on the Application of the Provisions on the Subject Matter of Civil Cases of the Supreme People (compiled by the Supreme People's Research Office, the Law Press, April 2008, the first edition, page 494), refers to the dispute between shareholders or between shareholders and the company over the existence of equity and the proportion of ownership.
In practice, there are three main types of equity confirmation disputes:
1. Equity confirmation disputes between shareholders due to anonymous contribution;
2. Equity confirmation disputes arising from equity transfer between shareholders;
3. Equity confirmation disputes between shareholders and the company.
Although some types of equity confirmation disputes can be divided, in fact, equity confirmation disputes are very complex, and their forms are difficult to exhaust. Moreover, there is no uniform judgment standard for a certain type of equity confirmation dispute in the trial practice. In this case, in addition to carefully studying the Company Law and the relevant judicial interpretations of the Supreme People, the opinions of senior people and relevant cases have important value.

1. Legal analysis:
Main types of equity transfer disputes:
(1) Disputes over the equity transfer contract between the two parties to the transfer.
(2) Litigation disputes involving the protection of preemptive rights of other shareholders within the company.
(3) Disputes arising from the transfer of defective equity contributions.
(4) Disputes arising from the transfer of shares by dormant or apparent shareholders.
(5) Disputes over bona fide acquisition of equity.
2. Legal basis:
Company Law of the People's Republic of China
Article 27 Shareholders can make capital contributions in currency, or in kind, intellectual property, land use rights and other non monetary properties that can be valued in currency and transferred according to law; However, the property that shall not be used as capital contribution according to laws and administrative regulations is excluded.
The non monetary property used as capital contribution shall be evaluated and valued, and the property shall be verified, and shall not be overvalued or undervalued. If laws and administrative regulations have provisions on evaluation and pricing, such provisions shall prevail.

1. Disputes involving the internal relations of the company: disputes on the distribution of interests of the company, disputes on the exercise of shareholders' rights, disputes on internal liability for capital contribution defects
2. Disputes involving external responsibility of the company: disputes over equity transfer, disputes over external responsibility for investment flaws, etc
The following issues need to be considered for the identification of the subject qualification of dormant shareholders:
1. Whether the creditors of the company know the existence of dormant shareholders in the case of insufficient capital contribution and defects of shareholders. If he knows the contribution of the dormant shareholders to the Company and actually controls the shares of the Company, he may require the dormant shareholders and the apparent shareholders to bear joint and several liabilities.
2. In the dispute between the Company's dormant shareholders and the confirmation of the apparent qualification, the dormant shareholders can directly oppose the apparent shareholders based on the agreement and other substantive evidence. The shareholder qualification can be confirmed directly without changing the register of shareholders.

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