The Transfer Of Limited Company's Stock Right

The stock right means the right of obtaining economic benefits and the right of participating in company's management and administration, which is enjoyed by the shareholder on the basis of his shareholder's qualification. By the look of such respects as formation, subject, function, exertion and so on, the stock right is the right that is enjoyed by the shareholder as one member of the company (a commercial juridical association), so it should be the member's right in nature. The characteristics of limited company's stock right is that the stock right is equal, relatively centralized and restrained from being transferred freely. Due to the people combination and capital combination natures of limited company, the company laws of various countries all set limits in stock right transferring for the purpose of protecting shareholder's interests and safeguarding creditor's interests, just the yardstick is different. The total legislative principle is that the stock right can be transferred both totally and freely, and the trust relationship between shareholders should be safeguarded.Our country's "Company Law" also set up special restricted regulations to the transfer of limited company's stock right, including entity's elements and formal elements, which are mainly embodied in article 35 and article 36. But these regulations are relatively principle and simple, with some contradictive places to the social realistic. Therefore, pros and cons of current regulations were analysized in this paper through the comparative research on legislating at home and abroad. In addition, the relevant legal questions of stock right transferring were discussed and some advice on administration of justice was proposed.First, as far as legislating and judicial explanation are concerned: (1) The concept "funds transferring" should be changed into "stock right transferring", which reveals the essence that the shareholder transfers company's property right on the basis of providing funds. (2) The appearance of "one person" company is desirable due to the economic development and the expanded pursuit of the limited responsibility principle, so the legislation should admit the existence of "one person" limited company. (3) Stock right transferring from shareholders to non-shareholders should be determined by shareholders' meeting according to the shareholder's numbers. This is the people combination nature of the company. (4) When stock right transferring is carried out among shareholders, interests should be balanced under equal conditions amongshareholders who want to buy stock right, according to one's own shareholding ratio. This not only lets the capital speak, but also makes equality. (5) The shareholder can exercise purchase preference partly, but should be restricted so as to grantee the stock right transferring smoothly. (6) The law should add the rule that shareholders can exercise purchase preference, defining its exercises time and procedure. (7) The law should implement conditional intervention principle to stock right transferring price just as the U.S. company law has done. (8) The law should add some corresponding regulations on stock right transferring that is not based on consultations.Second, as far as the judicial practice is concerned, four issues were discussed by case at first. That is, the legal effectiveness of corporation rules on restriction of stock right transferring, the dispute parties on stock right transferring, the right of canceling shares of weak shareholders (which concerns the compulsively transferring) and the effectiveness of stock right transferring from shareholders to non-shareholders without admission by more than half of the shareholders. Then, the integration and conflict issues between the stock right transferring system and other legal systems were probed. Specifically, one is the integration between "Company Law" and "Contract Law". The stock right transferring contract should come into effect on respecting the fact of the real transferring of stock right, after registering change of shareholde...