离婚诉讼中有限责任公司股权分割问题

The issue of marital equity division in divorce litigation is an emerging topic in contemporary legal practice and theoretical research, involving the intersection of civil law and company law, and there are multiple legal and practical difficulties. This article, through empirical analysis of 90 sample cases, finds that there are mainly three major problems: unclear equity ownership, conflicts between the division of equity between husband and wife and the interests of company shareholders, and difficulties in equity value assessment. The root cause of the problem lies in the dispute over the scope of equity co-ownership, the value conflict between company law and family law, and the absence of an equity value assessment system. It also puts forward suggestions for improvement, such as establishing a registration system for joint ownership of marital equity, standardizing equity assessment standards, improving the reversal of burden of proof, and introducing a "company repurchase" system.

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The equitable division of property in the events of divorces of business owners has attracted much attention from the public as it has potential to affect corporate governance. In particular, if a succession of business ownership is involved and the business owner's share in the corporation was acquired by gift or inheritance, the issue whether the share remains non-marital asset and therefore not subject to equitable division procedure arises. In principle, no reason exists for the issue of the divisibility of non-marital asset to be resolved differently in the case of business owner's divorce. The division of non-marital asset should remain an exception. There are, however, good reasons for the Supreme Court case and family court practice as well to identify non-marital asset as the object of equitable division where the marriage has been maintained for a long period. In particular, it should be considered that the substance of the business behind the business owner's share or equity has constantly changed during the marriage, and that the business owner makes a personal contribution to these changes or rather value increase. Just as business income in a sole proprietorship, even if it is based on non-marital property, is undoubtedly subject to equitable division, the increase in the value of the share or equity to a corporation should also be subject to equitable division, even though the share has been acquired by gift or inheritance. In this case, of course, the outstanding contribution of the business owner can also be considered in determining the division ratio. Undoubtedly, investors and other stake-holders can be interested in avoiding or reducing the possible affect of business owner’s divorce upon the corporate governance. It is the role of the prenuptial agreement in Korean as well as many other legal systems, however, to meet these needs. Even in the absence of a prenuptial agreement, the family court should try to minimize the affect of equitable division on corporate governance especially when determining the way to allocate divisible assets.

Harmonization and alignment of domestic legislation with the Acquis Communautaire are some of the most prominent and unprecedented topics nowadays in Albanian legal circles. As it is a tool for legal adjustments in different fields of law, to fully strengthen the path towards the EU integration of Albania, it is necessary to highlight and find the relevant framework where the alignment and regulation are acquired. The topic of the property rights of spouses in the context of company law provisions is a coherent and continuous issue for debate among lawyers and jurists in Albania. This paper examines the property rights of spouses in the Albanian Company legal framework and the necessity for harmonization with the Acquis Communautaire. The property rights of spouses in Albania have traditionally been governed by the Family Code of Albania, which does not provide clear guidelines for the division of property in the context of quotas, shares, company assets, and investments. This lack of clarity can create legal uncertainties and potential conflicts, particularly in cases of divorce or dissolution of a company and the estate of spouses, regardless of their marital property regime.

This Article draws upon the question: How do restrictions on transfers of shares of limited liability companies (LLCs) affect the “physiology” and “morphology” of property rights in those shares? The purpose of this Article is to scrutinize the effects such restrictions have on the definition of property rights members of LLCs hold in their shares. In this context, I use the term “un-consented transfer of shares” as my laboratory. Frequently, the operating agreements of these companies foresee that members who wish to sell their shares in the company must seek the consent of the other members or the management board for the transfer of shares. This is the case because LLCs, like their European counterparts, have a closed nature. Unlike corporations, LLCs are not typically designed to capture public investment. Therefore, the shares of LLCs are not supposed to be freely sold to third-party investors outside the company, unless their members agree otherwise. An unconsented transfer of shares stands for a transfer by a member of the company (seller) for which consent was not sought. For example, section 18-702 of the Delaware LLC Act provides that a LLC interest is assignable in whole or in part except as provided in the LLC operating agreement.1 Likewise, Louisiana Revised Statutes section 12:1330 foresees that “[u]nless otherwise provided in the articles of organization or an operating agreement, a membership interest shall be assignable in whole or in part.”2 The Delaware LLC Act as well as the Louisiana Revised Statutes are “default” statutes. As a consequence, if members do not agree on a certain matter in their operating agreements, then the respective default provision of the LLC law will apply.Empirically, operating agreements often refer to the effects of breaching a clause providing for restrictions on transfers. In some cases, the LLC agreement establishes that any attempt to make any sale of, or create, incur, or assume any encumbrance with respect to any membership units will be null and void and ineffectual and shall not be binding upon the managing member, if there is one, or the company. Non-transferring members will have all rights and remedies available under the agreements. Additionally, it is sometimes submitted that the purported transferee will have no rights or privileges in or with respect to the company, and the company will not give any effect in the company’s records to that attempted sale or encumbrance. Alternatively, there are operating agreements in which it is established that in case shares are transferred against the provisions of the agreement they should be redeemed. Furthermore, in some cases it is also agreed that any transfer, assignment, encumbrance, pledge, hypothecation, or transfer, which shall result in the termination of the relevant company for federal income tax purposes, will be null and void ab initio and of no legal force or effect whatsoever. Other contractual clauses stipulate, in addition, that after a transfer of any part of a membership interest is executed the membership interests transferred shall continue to be subject to the terms and provisions of the relevant agreement and any further transfers are required to comply with all the terms and provisions of the agreement. At times, it is also set forth that a transfer of any units in the company entitles the transferee of such units to receive only the economic interests. The transferee obtains no right to vote or participate in the management of the business and affairs of the company. Notwithstanding the foregoing, a transferee shall be included within the term “member” for the respective purposes of the agreement, except for purposes of the rights of a member to purchase units of other members. The transferor remains a member of the company with all rights to vote and manage unless and until non-transferring members owning a majority of the outstanding units in the Company (other than the units held by the transferor or the transferee) consent, in their sole discretion, which can be unreasonably withheld, to make the transferee a member.The exclusive transfer of economic rights to the transferee gives members of the company flexibility. Management rights, however, are influenced by property-rights principles. Therefore, the free transfer of managing rights is restricted pursuant to the way the concept of transfer is tailored in the agreement. The agreements, in general, adopt a broad concept of transfer. For example, transfer means sell, assign, convey, contribute, distribute or give. It may mean transfer by operation of law, whether directly or indirectly, voluntarily or involuntarily. The meaning can comprise the transfer upon foreclosure of a pledge, encumbrance, hypothecation or mortgage. The reason why restrictions on transfers and members rights are so detailed in the agreements has largely to do with this broad concept, which encompasses several forms of bargaining. Members enjoy management rights and economic rights, which they have to account for each and every time they transfer their units. The effects of the un-consented transfer of shares determined in the agreements echo this dual structure of the shares. Besides, they are reflective of the multiple layers of bargaining covered by the concept of transfer.In view of the partial unenforceability of the un-consented transfer of shares, for only economic rights can be transferred, it is crucial to understand how the share sale and purchase agreement (SSPA) is affected and the effects restrictions have on the definition of members’ property rights in their shares. This begs a careful study of the nature of the shares (are they composed of management rights, economic rights, or other types of rights?). Answering this question is a very important task that will enable the definition of property rights in shares and clarify which rights can be lawfully transferred. It will open the floor to revisiting and rethinking old principles of property law, such as the principle of numerus clausus. It will establish the ground for a new conceptualization of property rights, which does not rely so much on an individualistic perception of the institution. Finally, it will provide room to explore whether it is possible to create an alternative system of transfer of property rights in shares through the adoption of a principle of abstraction and a principle of separation, which is dominant in German contract law and other German-speaking countries.3This Article is structured in the following manner. Part II dwells on a definition of consent lato and stricto sensu. The purpose of these definitions is to distinguish between those situations in which an overall authorization is required by the law for the execution of a transaction from those situations in which compliance with specific requirements such as the consent of the company, pre-emption rights, and other types of restrictions are demanded by the law or the company’s articles. On one hand, this Part tries to understand if consent lato and stricto sensu are part of the SSPA. On the other hand, it tries to explain how these two forms of consent are liable to affect the validity of the SSPA. Part III focuses on the characteristics of the shares. It argues that, physiologically, rights in shares are similar to property rights. This Part also pays attention to the morphology of shares and tries to describe their structure. Part IV suggests a reconceptualization of property rights based on a new reading of classical principles of property and contract law such as the principles of numerus clausus, consensualism, abstraction, and separation. Part V concludes.

The transfer of equity in a limited liability company is significantly different from that of a joint stock limited company. In order to ensure the human rights cooperation of a limited liability company, the provisions of the company law reflect great respect for its free will. In addition to ensuring the preemptive right of internal shareholders, the provisions of the company’s articles of association on equity transfer have a high binding force on all shareholders. Since the development of the company system, disputes over the transfer of equity by shareholders of limited liability companies have emerged one after another. Especially after strict conditions for equity transfer are set in the articles of association or investment agreements of all shareholders of a limited liability company, there are many cases where shareholders continue to transfer equity in violation of the articles of association or agreements. In the current context of company law, it is particularly important to determine the effectiveness of contracts signed between shareholders of a limited liability company and external equity transferees. The contradiction between the preemptive right of internal shareholders and the interests of external equity transferees arises. How to resolve it has also become a challenge. In the context of restricting equity transfer, the equity transfer agreement signed by shareholders of a limited liability company with external parties should be analyzed in conjunction with the provisions of the Civil Code on the effectiveness of legal acts in addition to the provisions of the Company Law, due to the different legal relationship subjects involved in the case. In the absence of obvious illegal reasons, the equity transfer agreement should be recognized as valid in accordance with the law. Between the preemptive right of internal shareholders and the protection of the interests of external equity transferees, a priority choice should be made to support the preemptive right of internal shareholders under the same conditions. External equity transferees can pursue the legal responsibility of the transferring shareholder in accordance with a legal and effective agreement, and protect their own legitimate interests

Startups use stock options to compensate their employees. An employee’s divorce could result in a change in the formal ownership of the startup securities. However, the startup, the employee, and the former spouse of the employee all have considerable and conflicting interests in the outcome of the allocation of the employee’s securities as part of a divorce settlement. I argue that the startup, along with the relevant tax rules, imposes obstacles on the transferability of the securities to the employee’s former spouse that are likely to distort the settlement outcome. An inefficient outcome is likely because the person who may assign a higher value to owning the securities is both barred from owning them and prevented from receiving equivalent value in exchange. While amending the IRC would allow for more outcomes and could enable the parties to reach a more efficient result, corporate law’s attempt to protect the shareholders’ rights and scrutinize contractual arrangements such as voting agreements and appraisal waivers could have an ex-ante unintended consequence. Specifically, since the startup is likely to continue, it may deprive the former spouse of any equity rights following the divorce and attempt to prevent possible complications to future corporate transactions once the tax pretext is lifted.

A number of studies in the Hungarian legal literature have explained the challenges raised by the ‘division’ of common property contributed to a company. The aim of this paper is to explore the current corporate law aspects of matrimonial property litigations as a result of the entry into force and joint application of the Hungarian Civil Code and the Code of Civil Procedure. In order to achieve this goal, firstly, the author focuses on a critical analysis of the existing procedural law governing matrimonial property lawsuits, with a special emphasis on the intersection of litigious and related non-litigious proceedings. The second part of the research project examines matrimonial property law provisions applicable to the various company forms that may constitute matrimonial common property according to the set of rules governing legal persons in the new Civil Code.

The study explored legal inconsistencies in Albaniaʼs matrimonial property and commercial law, where differing traditions create uncertainty in classifying business assets acquired during marriage, impacting spousesʼ rights and creditor claims. The purpose of research was to identify the applicable law on the commercial activities started and/or managed by each spouse during marriage, as well as to investigate the inconsistencies between family and commercial legislation. The study employed a comprehensive legal research methodology, integrated desk legal analysis, case law examination, comparative study, and doctrinal legal research, with a particular focus on analysing national and foreign legislation, judicial decisions from the Albanian and Italian High Courts, and academic legal doctrine to assess the intersection of matrimonial property and commercial law. The study analysed the Family Code of Albania and the Law on Entrepreneurs and Commercial Companies. These two sets of legislation were enacted at different times and are based on distinct legal models. The study demonstrated that, they lack coordination, making their practical application challenging for Albanian courts. Additionally, it examined the influence of the Civil Code of Italy on the Albanian legislation regarding the regulation of the matrimonial property regimes. Although the community property regime is modelled after Italian law, there are some differences between the two legal systems when it comes to commercial activities established during marriage. The study lays the groundwork for legal reforms to harmonize matrimonial property and commercial law in Albania, ensuring clarity in business asset distribution

Abstract: the article is devoted to such aspects of marital property’ division as the division of business assets and liabilities. Attention is drawn to the fact that since the introduction of the Family Code of the Russian Federation, the structure of the economic basis of an average Russian family has changed significantly. It is concluded that when dividing, a large block of shares should be recognized as an indivisible thing and transferred to the spouse who was doing the business of the company. It is emphasized that doing business as an individual entrepreneur by one of the spouses is rather risky. The impossibility of sectioning an account on a social network is indicated, as well as the difficulties with the division of cryptocurrency. Attention is drawn to the absence in the legislation of the presumption of the community of spouses’ debts. It’s criticized that the financial manager, in accordance with the rules of the special law “On Insolvency (Bankruptcy)”, includes in the bankruptcy estate all the common property of both spouses (former spouses), sells this property, and only after satisfying the requirements of creditors within the share of the debtor spouse, if any funds remain, these funds are issued to the debtor's spouse. The recognition of tax liabilities as common obligations of spouses is debated.

Background: The purpose of this study is to examine the interaction between the legal discipline of matrimonial property regimes and the commercial activities of spouses that are established before or during marriage. It aims to investigate how the legal community impacts commercial companies, specifically in the hypothesis where the shareholder of the company is married. There is ongoing debate within legal circles about whether shares of a commercial company established by one spouse during marriage or acquired through a legal transaction are part of the legal community. Regarding this matter, several issues arise: whether the participation in the company's initial capital is governed by community administration rules, which is the legal nature of shares acquired by one spouse, and how the marital community regime interplays with commercial legislation. Another issue that has engaged legal doctrine is whether the spouse of a shareholder is recognised as a shareholder and can participate in the company administration. Albanian Family Code lacks specificity on shares, mainly addressing small family businesses. The study of the interaction of these two disciplines aims to assist jurisprudence because, despite some cases of the Supreme Court and the Constitutional Court in recent years, this is still a relatively new field for Albanian doctrine and jurisprudence. Methods: The research methodology adopted for this paper employs a multi-faceted approach, integrating desk research, legal analysis, case law review, and a comparative study. It encompasses an examination of relevant national legislation, as well as foreign legislation from civil law tradition countries such as France and Italy. Furthermore, European soft law, notably the principles of the European Commission of Family Law (CEFL) focusing on matrimonial property issues, has been reviewed. Our research methodology includes gathering and analysing existing studies and academic literature on matrimonial property regimes. To better understand the norms of the Family Code regarding matrimonial property regimes, we will analyse Italian and French doctrine and jurisprudence, as well as the legal systems based on which the Albanian Family Code has been drafted. It should be emphasised that while this paper’s primary aim is not solely comparative analysis, it strives to assist in better understanding and implementation of the legal community regime as the most used regime by spouses in practice. Also, a comprehensive comparative analysis has been conducted, comparing Albanian legislation and the CEFL Principles, to identify key similarities, differences, and potential areas for enhancement within legal frameworks. Moreover, the jurisprudence of both Albanian and foreign High courts has been extensively utilised to enrich the analysis and provide insights into practical applications of legal principles. Results and Conclusions: The solution to the abovementioned issues depends on the company’s legal structure and articles of participation rules and requires a combined interpretation of matrimonial property regimes and commercial law. In this combined interpretation of the rules, protecting the rights and interests of all involved subjects, the interests of the spouses and those of the commercial company as a legal entity is crucial.

The article is devoted to the study of legal problems of transferring corporate rights by means of a marriage contract and division of shares in the company between spouses. The authors analyze legislative conflicts between the norms of family and corporate law, focusing on statutory restrictions, publicity of corporate rights and the legal status of the unnamed spouse. The authors propose amendments to the legislation to eliminate the ambiguity, including enshrining the marriage contract as a tool for transferring corporate rights.

According to the precedent, separate property can be divided if the partner of the owner contributed directly or indirectly to acquire or maintain it by homework, even when it is an inherited property or a property acquired in exchange of the inherited property, and the same applies to the property donated by a third party. However, it runs counter to the ideology of the separate marital property system and makes it difficult for the parties to predict the result of the trial. It is not desirable to open up the possibility of division for business property in particular, because domestic dispute between the married couple results to an excessive economic impact on the existence and operation of the company. This paper is written for introducing the scope of property subject to division under the U.S. equitable property division system, and demonstrating based on the comparative law research that a property inherited or gifted as well as its variants and increases in value should not be divided unless it is transmuted to mixed property or it falls under the category of active appreciation.

WHAT BEFELL THE PETITIONER IN THIS CASE? In Safina Ally v. Daku Abdallah, the appellant (Safina- wife) was married to the respondent (Daku Abdallah - husband) under Islamic marriage in 1986. In 2017, their marriage was dissolved by the Musoma Urban Primary Court. Subsequent to dissolving the marriage, the Primary Court awarded the appellant 25 percent of the immovable assets, while the respondent was awarded 75 percent. In addition, the court made an order to both parties to pay Tsh. 1,000,000/= to Faida Marco, being an outstanding loan taken for some business. The Primary Court refrained from distributing assets owned by the company in which the husband was a shareholder. The appellant was aggrieved by this decision. She unsuccessfully appealed to the District Court and the High Court. In the High Court, the relevant grounds of appeal which forms the basis for this case note reads as follows: (i) the courts below erred in law and fact for holding that the company (industry) owned by the parties is not subject to division of matrimonial assets (sic). The High Court held that the courts below were justified to decline distribution of the industry duly registered through the Companies Act.

The object of the study is the legal facts that lead to the emergence of rights to a share in the authorized capital of a limited liability company (hereinafter referred to as the company). The author examines the consequences of the appearance of a share owned by the company. The legislation provides for two types of shares in the authorized capital of the company, which can exist simultaneously. The first type arises as a result of payment by the participant of the authorized capital, which in return for the contributed property receives an indefinite right of participation. It is this right that is hidden behind the share owned by the participant. The second type has a derivative character and arises from the decisions of the supreme governing body or the behavior of the participant and belongs to the company throughout the year. The purpose of the work is to develop and construct new theoretical provisions on the grounds for the emergence and consequences of a share owned by the company. Research objectives: to determine the legal facts of the emergence of rights to a share in the authorized capital of the company, to systematize and classify the grounds for their occurrence and consequences. The following methods were used in conducting a study: permissive regulation, normativism, general contexts of a philosophical and legal nature and national law and order. The science of civil law is closely related to legal regulation, therefore, the doctrinal understanding of some constructions affects the consolidation of certain categories in the rule of law. This is exactly the category of the share owned by the company. It was found that the constructions associated with the transfer or acquisition by the company of rights to a share in its authorized capital are a legal fiction. The grounds for the emergence of a share owned by the company were classified, depending on the will of the latter: the first group consists of bilateral reimbursable transactions, and the second - two unilateral transactions. In both cases, the consequences are the same - the corporate legal relations arising from the right of participation and binding between the company and the participant are terminated. Three options for the sale of the share owned by the company were identified: the division of the former participant's right of participation among the remaining ones, sale to a predetermined buyer and repayment with a simultaneous decrease in the authorized capital and an increase in the size of the participants' shares while maintaining their nominal value.

The article is devoted to the study of the realization of the rights of common joint property of spouses in entrepreneurial activity in the event of termination of family relations. It has been established that the regime of common joint ownership, enshrined in family law, does not operate within the framework of corporate norms of civil law. In particular, it is not possible to implement a division of a family business in a peasant farm and the possibility of such a division in limited liability companies is limited. As a result, conclusions were drawn to protect the rights of these.

The common property of the spouses may include shares or shares in the authorized capital of the company, therefore, various procedural problems related to family and corporate law arise in the practice of the courts. Purpose of the work: on the basis of doctrinal and empirical analysis to resolve some procedural problems in the consideration and resolution of family-corporate disputes. Brief conclusions. When considering a dispute on the division of a share in a company, the court should bring up for discussion the issue of the possibility of obtaining compensation for it, which can prevent further corporate disputes. The fact of the presence of a prohibitive clause in the charter of a legal entity should not be included in the subject of proof in a family dispute on the division of a shares. The presence of a court decision on the recognition of ownership of a part of the share and the disagreement of other participants in the corporation serves as the basis for paying the actual value of the shares. The spouse has the right to apply to the arbitration court to challenge the corporate decision if he violates his property right, but in this case an increased standard of proof will apply, since the plaintiff is obliged to provide indisputably evidence of the disagreement at the time of the legal actions, their economic inexpediency. &Keywords: family dispute, corporate dispute, jurisdiction, proof, shares

The author analyzes disputes regarding shares in closely held companies, when couples are going through divorce. The Serbian legal framework does not provide regulations specifically for the addressed matter and the court practice is inadequate. This type of dispute is accompanied by risks to the existence of companies and the families, if not resolved in a timely manner. Mediation is generally applicable, whereby each particular case requires the assessment of mediation applicability criteria, such as gender and other sources of imbalance between the spouses. Mediation shows advantages in terms of time, confidentiality, the possibility of simultaneous resolution of multiple disputes, high voluntary fulfilment rate, and the possible improvement of relations between the parties. The inclusion of mediation clauses in shareholder agreements and in marital agreements is recommended.