Study On Procedure Limitation Of Outside-transfer Of Shares In Limited Liability Corporation

Due to the co-personal characteristic of limited liability corporation, the outside-transfer procedures of shares are limited. Article of assent and article of preemptive right of article 35 of old Corporate Law prescribes double limitation concerning the transfer of shares. However, the prescription is so general that it lacks operability. The second and third clause of article 35of new Corporate Law has made corresponding revision and improvement. But no changes have been made concerning the vote mechanism of article of assent and applicable objects of article of preemptive right. This thesis will be carried out from the above two questions.The first part will be based on the right-change system in civil law and will come up with a new right-change system. Under the new system, the thesis will define the connotation and denotation of transfer of shares which will be the basic of the following discussion.The second part will analyze the vote mechanism of article of assent prescribed in the first sentence of the second clause of article 72-"more than half of the other shareholders". In general,"more than half"here means capita majority rule/voting instead of capital majority rule/voting. This opinion is in violation of the general legislation of continental law countries. It will also bring about the conflict of internal system of corporate law as well as the inconsistence with the basic principle of equality of shares. Thus, this opinion shall not apply. By means of semantic interpretation, systematic interpretation, comparative interpretation as well as sociological interpretation,"more than half"shall mean more than half of voting rights.The third part analyzes the objects of article of preemptive right. It is commonly believed that"other shareholders"prescribed in the third clause of article 72 of Corporate Law means shareholders with consent and disapproval. In this case, it might seduce other shareholders to violate the principle of good faith and interrupt the outside-transfer of shares as well as the quit of shareholders maliciously. Meanwhile, it will hinder the realization of the encouragement of investment of Corporate Law. In all, we shall adopt purposive restriction to"other shareholders"and repel the application of articles of preemptive right to shareholders with consent.