Research On The Legal System Of Appraisal Rights Of Dissent Shareholders

With the development of modern corporate system, the shareholders of balancing of interests become a key in the harmonious development of company. Voting system guided by the Majority Rule traditionally can not fundamentally protect the interests of minority shareholders. The Majority Rule is derived from "one share one power", as the basic principle of modern company law. Power of voting rights of a shareholder is in proportion to the number of the shares he holds, that is, the more stocks he owns, the more power of voting he has, otherwise the less power of voting. The opinion of majority shareholders in general meeting of shareholders is viewed as the corporation's according to the corporate law, which is binding on all of the shareholders. Especially in practice, it is well documented that majority shareholder infringe upon the legitimate rights and interests of minority shareholder taking the advantage of own shares. It is a challenge in the legislation that how to protect the interests of minority shareholder. The appraisal right of dissenters emerge as the times require. The appraisal right of dissenters, as a result of limiting the shareholders' right in essence, is a kind of measure that takes in account in the legitimate rights and interests of majority shareholder and protects the rights of minority shareholders adequately, which keep the balance between the Majority Rule and protection of minority shareholder as much as possible.This system implied such a value orientation which protects the right of shareholders assembly resolution by majority shareholders of shareholders' rights first, as a kind of compensatory system, statute admits also gives the minority shareholders claim to repurchase the expectation interests as a relief frustrated at the same time. The balance is finally achieved that the company law satisfies respectively expectant benefits both majority shareholders and minority shareholders by different rights accordance with this law. In 2005, China' revised the company law and the appraisal right of dissenters is provided in two article in the company law. There is some conflicts between new provisions and original provisions, for example Article 75 in the company law provides the specific applicable condition of the appraisal right of dissenters that a shareholder votes against the resolution that the company is to be merged or divided, or the principal part of its property is to be transferred adopted by the shareholders assembly may request the company to purchase his equity at a reasonable. However Article 44 in the company law provides resolutions made at meeting of the shareholder assembly on the merger, division, dissolution or transformation of the company shall be subject to adoption by the shareholders representing two-thirds or more of the voting rights. So how to coordinate the Article 75 and Article 44? The appraisal right of dissenters as a system of protection of minority shareholders can't get the due protection of the minority shareholders' rights and interests in fact, because of lack of legal procedural regulation, vague statutory provisions.Therefore the appraisal right of dissenters provided in article 75 and 143 of corporate law is introduced to cover the shortage of the Majority Rule as a very important and effective remedy for minority shareholders. However, due to establish too late by our country, the appraisal right of dissenters is not only ineffective and imperfect but also has lots of problems in judicial practice. The article has improved the system of appraisal right of dissenters by means of detailed analyzes the content and development of appraisal right of dissenters and in reference for correlative legislation of foreign countries.