Research On Transfer Of Shares

Since German businessmen and Commercial law academics create Limited Liability Company as a type of company, Limited Liability Company's rapidly spread to all corners of the world, used by many investors that many countries made legislation to adjust it in the scope of the Companies Law by its own unique charm and the strong vitality. To date, Limited Liability Company has become the world's largest form of the enterprise without any reduction. As a company form between the Limited Company and Unlimited Company, Limited Liability Company make the limited liability and flexible set of corporate governance in one which has both feathers of co-funding and co-personal. The essential of Limited Liability Company's co-funding feather require the free movement of capital and free transfer of equity to ensure that investors can recover investment costs to achieve the return of investment. The essential of Limited Liability Company's co-personal feather request the establishment of the company should be based on mutual trust among shareholders, and the trust between members of the company and the stability are very critical for Limited Liability Company that the capital flows, transfer of shares can not as free as the normal Company. So,many country make the appropriate restrictions to the transfer of shares in the norms of companies Legislation. With the continuous development and improvement of China's socialist market economy,and capital markets' continued activation and the gradual maturity, as a special form of capital transactions, the Limited Liability Company's transfer of shares is becoming more frequent and active in the practice. Therefore, they has become the important topic for scholars and legislators to think and study in depth that how to protect shareholders' right of free transfer to be achieved for maintaining the co-funding' essence of Limited Liability Company and how to ensure normal operation order of Limited Liability Company without destroying its basis of co-personal. In recent years, China's academic circles have been gradually paying attention to the research of transfer system for Limited Liability Company, especially before and after the Company Law Amendment, scholars take extensive and in-depth study for the transfer of shares of Limited Liability Company and make a large number of valuable recommendations for improving our company legislation. As the response to the practice and academic of company, On October 27, 2005 the eighteen meeting of the Tenth National People's Congress adopted new"Company Law"which set up of a special chapter on the Limited Liability Company for the transfer of shares, amend and improve the related systems of old "Company Law", enhance the operational of the transfer of shares, and make the greater progress compared to the old"Company Law", but there are still some problems and deficiencies, such as blindly following the Western developed countries'companies legislation, advocating corporate autonomy, lack of the full account of the current legal culture of China's market economy, leaving too much problems to the company's charter regulations, the thinness of relevant laws and regulations which is not conducive to the practical operation of Limited Liability Companies. Thus, there is still more worthy of study and research in theory and practice aspects of company law.In this paper, on the basis of relevant provisions in our country's new"Company Law", by using of historical analysis, comparative analysis, value analysis and other research methods, and comparatively studying of the relevant legislation about transfer of shares in extra-territorial, the author explore into the problems for theory and practice in the existing system of transfer of shares in China and put forward the sound and comprehensive recommendations for it. This article is divided into four chapters, Reads as follows:The first chapter refers to the basic theory of Limited Liability Company's transfer of shares. This chapter is divided into three parts; the first part of this chapter refers to related concept of transfer of shares. The author compares the related concepts with the concept of transfer of shares on the basis of a comparative analysis for the concept and characteristics of system of transfer of shares. The second part of this chapter discusses the legal basis of the transfer of shares in Limited Liability Company and reveal the theoretical basis for free transferring of shares in the Limited Liability Companies, that is, the theory of freedom capital, the theory of corporate personality and the theory of company owned jointly. The third part of this chapter argues the system value of the transfer of shares in Limited Liability Company making directions for the company legislation of for our country.The second chapter refers to the agreement of transfer of shares in Limited Liability Company. This chapter is divided into three parts; the first part of this chapter studies the internal transfer of shares. On the basis of studying of the legislative approach for restrictions to internal transfer of shares in Limited Liability Company in extraterritorial, the author demonstrates the need for restrictions to internal transfer of shares and problems existing in companies legislation in our country combined with China's national conditions. In addition, as to the case of all the shares focus to a separate shareholder for the internal share transferring, the author deeply discusses the"normalization"in share transferring and focuses on the legal application of"normalization". The second part of this chapter studies the external transfer of shares. It main focuses on the statutory limit of external transfer of shares that is assent system of share transferring and the system of shareholders'pre-emptive rights. In the assent system of share transferring, the author mainly studies the attitude of extraterritorial legislation, the significance of the setting up the assent system of share transferring, the voting rules, the main body and the voting right of shareholders who sell his own shares of the assent system of share transferring. The third part of this chapter argues the validity of the share transferring in Limited Liability Company. First of all, the author demonstrates the level of effectiveness in share transferring, followed by the account for the effectiveness of the representative of share transferring.The third chapter refers to the transfer of shares in Limited Liability Company without agreement. This chapter is divided into four parts; the first part of this chapter studies the enforcement of shares. The author argues that if the shares could become the subject, principles and procedures of the enforcement and so on. The second part of this chapter studies the succession of the shares. The author argues the extra-territorial legislative investigation of the legitimacy of shares'succession, the legitimacy of the shares'succession and the principle of succession. The third part of this chapter studies the division of the total shares between the husband and wife. The author argues the account of the shares as husband and wife's common property, the inspection of the legislative attitude about the extraterritorial shares hold by the couple, the legitimacy and the principle of shares'division. The fourth part of this chapter studies the shares transferring which is based on the opposite holders'request right of repurchasing shares and contains the content and the theoretical basis about it.The fourth chapter refers to the improvements and perfections of the system of shares transferring in Limited Liability Company. This chapter is divided into two parts; the first part of this chapter studies improvements and perfections of the system of shares transferring based on agreement. It majors in the existing problems in the process of shares transferring and put forward specific recommendations for improving. The second part of this chapter studies the improvements and perfections of the system of shares transferring without agreement. The author put forward specific recommendations for the enforcement system of shares, the succession system of shares, the partition system of couples'total stake and the opposite holders'request right of repurchasing shares in company legislation.