Research On The System Of Appraisal Right Of Dissenters

Traditional corporate governance adopted "unanimous decision" principle, shareholders were entitled to the same right on voting regardless of the number of the shares they hold. However, it was too difficult to obtain unanimous consent of all shareholders because of the diversity of interests. Therefore, the principle of "unanimous decision" makes the operating efficiency of corporation greatly reduced. Thus, "majority decision" principle has come into being.According to this principle, shareholders'voting right are in accordance with the amount of their shares. In modern corporation, "majority decision" has been accepted as a general principle when voting, which not only produces efficiency and development to corporation, but also tend to produce "tyranny of the majority", making the interests of minority shareholders damaged. In order to prevent minority shareholders become "prisoner of funding", the appraisal right of dissenters was created. The appraisal right of dissenters originated from the case law of 19th century in America and has been established by national legislation in Britain, Italy, Canada, Germany, Japan, South Korea, Spain, Taiwan and other countries or regions. The appraisal right of dissenters is essentially a statutory creation to enable shareholders who object to certain extraordinary matter to dissent and to require the corporation to buy their shares at a fair price and thus to withdraw from the corporation.China's 1993 "Corporation Law" didn't establish the system of the appraisal right of dissenters. As the rapid development of the economy, as well as more and more frequent merger, restructuring and other fundamental changes of company, it is imminent to establish and perfect the system of the appraisal right of dissenters. In our country, the appraisal right of dissenters was first time in the form of law established by "Corporation Law " in 2005, which is undoubtly a tremendous progress in our legislation. However, our legislation on this right is too simple, which provides a narrow suitable scope and lacks the concrete compliance on procedure, so that it can not properly operated in practice and should be perfected.The thesis chooses the system of the appraisal right of dissenters as the research object. It starts with the fundamental theory, and then compares the national legislation and judicial practice, and puts up some advices on how to make our system of the appraisal right of dissenters more perfect at last. The thesis is mainly divided into four parts:The first part is an overview of the appraisal right. It starts with the definition and nature of this right, and followed by its jurisprudential basis. Finally, this part analyzes the positive value of appraisal right as well as potential hazards. Appraisal right not only can protect the interests of the minority shareholders, but also play an important role in improving efficiency and management supervision. Besides, we should minimize the potential hazards of the appraisal right.The second part introduces and compares the system of the appraisal right of the dissenters in several countries(regions). The comparative analysis covers some contents related to the appraisal right of dissenters, including issues on the entity, the procedure, the determination of the repurchase price of shares and other relevant issues, such as the exclusiveness, invalidation, exemption and switching mechanism of appraisal right.The third part is mainly concerned on our legislation about the system of appraisal right. This part introduces and analyzes current situation of our legislation and then point out the defect of the system of appraisal right of dissenters in our country.The fourth part presents some views to provide a reference to the perfection of our system of the appraisal right of dissenters. Based on our current situation, referenced with the advanced legislation and judicial practice of other countries(regions), this part analyses in detail the substantial application and procedural application of this system in China. In the end, it puts forward suggestions on the exclusiveness, invalidation, exemption and switching mechanism of this right, as well as the protection of creditors.