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21st Century Business Herald: (Lou Qiuran) Company Law in the Judicial Interpretation of Marriage and Family

Release time: January 23, 2025 Edit: Yu Lu

(Source: 21st Century Business Herald 2024-01-18)

The ownership of husband and wife's equity is a complex problem in legal practice, especially in the common and special corporate form of the "husband and wife shop".

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In the past three years, the first trial of marriage and family inheritance disputes in the first trial of the national courts reached about 2 million per year, of which about 80%of all household cases of divorce disputes. Among these divorce disputes, the division of property has become the focus, showing the new features of the increasing amount involved in the case and diversified property types.

To cope with this challenge, on January 15, 2025, the Supreme People's Court announced the "Explanation on the Application of the" People's Republic of China "marriage and family (2) [" Explanation (2) "] Among them, Article 9 and 10 have made detailed provisions on the issue of equity in the division of husband and wife's property, and provide judicial answers for the difficulty of the equity ownership of the limited liability company in the w88 slotproperty of the husband and wife property.

Equity transfer, do I need the consent of the spouse?

"Explanation (2)" Article 9 stipulates that the husband and wife's unilateral transfer name and the effectiveness of the behavior of the equity.The regulations point out that the equity of a limited liability company registered with the joint property of the husband and wife but registered under the name of the husband and wife is transferred. The court does not support it, but there is evidence to prove that the transferor and the assignee maliciously collude to harm the legitimate rights and interests of the other party.

So, will the husband and wife unilaterally sign the equity transfer contract, will it be invalid because of the consent of the spouse?

Beijing Haotian (Xi'an) Law Firm partner Zhang Ying said in an interview with the 21st Century Business Herald that if the equity transfer behavior has not infringed the interests of the spouse, the equity transfer contract is generally not effective. And if the party holding the party and the third person are maliciously connected to the interests of not the spouse of not directly holding the parties, at this time, the legal consequences of invalid equity transfer behavior may occur.

Assistant and Associate Professor Lou Qiuranfurther explains the reasons behind this regulation.He said that this provision reflects respect for commercial appearanceism in civil law.For example, the husband and wife jointly invested in a company, but the company's equity was only registered under one name. At this time, for the third party, whether it is checking the shareholders' roster, the company's articles of association, or the industrial and commercial registration, they can only see that the equity belongs to the appearance of one person.

At the same time, Article 9 also stipulates that when the party holding the party and the third person maliciously collude, it harms the interests of not the spouse of the uncle's party. At this time

w88 casino gamesZhang Ying said: "In practice, this kind of stringing with a third person is very common. In the process of divorce litigation, we often encounter. Transfer the equity to achieve the purpose of transferring property, making the other party less or indiscriminate.

How to divide the equity of the "husband and wife shop"

"Explanation (2)" Article 10 stipulates the issue of the equity division of the "husband and wife shop".This article stipulates that: couples have registered as shareholders with common property investment limited liability companies. If the amount of capital contribution is determined, the people's court shall not support it; the people's court shall be handled in accordance with Article 1087 of the Civil Code on the request of the parties to divide the common property of the husband and wife.

Zhang Ying explained that in the Civil Code, the division of equity of the "husband and wife shop" has been stipulated, but in practice, many people still directly regard the industrial and commercial registration information as the basis for the husband and wife to make an agreement on the ownership of the shares. That is, who is registered under the name of the equity.

Lou Qiuranfurther pointed out that "Explanation (2)" once again emphasized that regardless of whether the equity is registered in the husband and wife or the name of both parties, the husband and wife still have to divide the equity in accordance with the general regulations of the Civil Code. He said, "Except for the couple with another agreement before marriage, in general, the husband and wife should be distributed average of the equity. Of course, if the husband and wife have faults, they should be less or different in accordance with the regulations of the civil code."

It is worth noting that when the husband and wife break up, the judiciary has adopted different treatment methods for industrial and commercial registration in the treatment of external transfer and internal division.For this,Lou QiuranExplanation said that this different reason is that during the transfer of equity, in order to protect the security of transactions and maintain the order of transactions, "Explanation (2)" provides a third party in good faith in accordance with the status of equity registration. However, in the occasion of the divorce property division, there is no need to protect the security of transactions and maintain the order of transaction. Therefore, it should be divided according to the real state of the property rather than the registration state.

A spokesperson for the Press Bureau of the Supreme People's Court stated that the "Explanation (2)" has been reviewed and approved by the Supreme People's Court Judicial Committee, which will be officially implemented from February 1, 2025.

Original link

https://m.21jingji.com/article/20250118/herald/488eef37f7184caed96235e8ed93cae5.html?t=3401


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