论股权多重转让中善意取得规则的修正适用

《公司法司法解释三》第27条第1款规定“一股二卖”纠纷应参照适用善意取得规则。但股权与物权变动模式相去甚远，股权登记对抗主义与善意取得制度亦抵牾颇多，股权多重转让参照适用善意取得规则将面临适用上的窘境。为增进法律体系的和谐并促进股权登记、鼓励诚信，第27条的修正适用需在登记对抗主义的前提下寻求先买人和第三人之间的利益均衡点。由于我国现阶段股权外观效力的缺陷，股权多重转让中更需注重对先买人利益的保护，并妥当刻画先买人的可归责性标准与第三人的“善意”标准。可归责性标准可以在个案中具体衡量，第三人“善意”标准可以从承担有限的调查义务逐步过渡到善意推定，再到登记对抗主义，逐步消解善意取得对登记对抗的制度异化和干扰。

Modified Application of Bona Fide Acquisition Rule in Multiple Equity Transactions

According to Paragraph 1 of Article 27 of Judicial Interpretation Ⅲ of Company Law, the people's court shall refer to the application of bona fide acquisition rule when handling the disputes over multiple equity transactions. However, this application would create unnecessary troubles. Moreover, equity registration confrontation doctrine conflicts with bona fide acquisition rule in many ways. First of all, applying bona fide acquisition rule, which typically is applicable in the field of real property, to the field of equity transactions may face difficulties. Article 32 of the Company Law constitutes the legal basis for changes in equity interests, according to which, changes in equity interests follow the rule model of ″the company's approval + registration confrontation.″ This is significantly different from the changes in the real property ownership. In addition, the abuse of the bona fide acquisition rule in the field of equity changes might lead to confusion of third party in terms of ascertaining the time node. Due to the particularity and complexity of the equity changes, neither referring to the delivery of movable property nor the registration of real property can be logically consistent. In addition, there are conflicts between the two sets of rules. Bona fide acquisition rule hinges upon the theory of right appearance, aiming to safeguard transaction security. The premise of the application of bona fide acquisition rule is ex right disposition, third party's good faith as well as trustworthiness of right appearance. However, equity registration confrontation rule acts more as a trading rule, aiming to promote equity registration and implementing effectiveness of registration. Accordingly, the nominal registrant who transfers the equity in multiple transactions still have the right to dispose the equity, and consequently the third party does not need to be bona fide during the transaction. Additionally, under Chinese law, equity register and stock ledger are not reliable enough in terms of right appearance, and thus does not fulfill the premise of bona fide acquisition. In views of all the conflicts listed above, Paragraph 1 of Article 27 of Judicial Interpretation Ⅲ of Company Law essentially violates Article 32 of Company Law, and also does not follow the hierarchy of the legal effect. In order to enhance the harmony of legal system , promote equity registration as well as deter transactions in bad faith, modified legal application of Article 27 of Judicial Interpretation Ⅲ of Company Law shall focus on the intrinsic logic of registration confrontation doctrine, and strike a balance between the interest of first transferee and the third party. Specifically, from systemic logic perspective, registration confrontation doctrine should be the main thread in legal application; while bona fide acquisition rule should be taken into account in weighing specific interests, considering the first transferee's accountability, third party's subjective state as well as duty of care. Under German law, the effects of right appearance have inverse correlation with both first transferee's accountability and third party's subjective state. Due to the drawbacks of the appearance of equity under Chinese law, which leads to relatively lower trustworthiness, the interest of first transferee deserves more protection in multiple equity transactions. In this sense, the criteria of the first transferee's accountability and the third party's subjective state should be adjusted properly. Given the institutional and habitual preference for bona fide acquisition rule in legislation and judicial practice, the assessment of the criteria of the third party's good faith may be carried out in several separate stages. Nevertheless, registration confrontation rule shall be the center. Specifically, the criteria of good faith may be improved gradually from the third party's limited investigation obligation, to the presumption of good faith, and finally the absolute legal application of registration confrontation rule, and thus reduce the interference of bona fide acquisition rule progressively.