The Stduy Of Shareholders' Preemptive Right Of A Limited Liability Company

The Shareholders'preemptive right of a limited liability company is an important right for China's Shareholders of a limited liability company, and is also an important system to regulat the share transfers of limited liability company in China, it has an extremely important role to sustain company close relationship among Shareholders of the limited liability company, and protect Shareholders'vested interests as well as achieving the Shareholders'expected benefits. However,Reviewing our current legislation on shareholders'preemptive right, we can find that the present legislation has inherent defects, concentrated expression in two aspects that institutional predicament come from legislative design and applicable predicament produc ed in fuzzy rules, which results cases on the shareholders preemptive right occur frequently in China at present, and greatly hinder equity transfer smoothly, deeply influenced the healthy development of our country economy. Therefore, we must analyze and research the shareholders'preemptive right system and its current legislation deeply, in order to seek measures which can breakthrough dilemma of shareholders preemptive right,and guarantee the shareholders'preemptive right system operating benignly.This article take the following methods such as comparison and analysis and so on, combining the latest legal theory and judicial interpretation ,studying and researching deeply in the nature, the legal idea, the rule design, application scope, effectiveness attributive and other problem of shareholder preemptive right system, and proposing some related suggestions which to perfect the shareholder preemptive right system from the processing practice perspective.This paper are divided into four parts: the first part is to shareholders of a limited liability company preemptive right system, introduces the shareholders overview of the concept and characteristic of preemptive right, and its properties, focusing on the analysis about the problems in the comments on the main doctrine, think shareholders preemptive right and expectations right has formed the double properties, The second part is to shareholders preemptive right legislation reasons and legal basis discusses the retrospective shareholders preemptive right has sustain the human joining sex, protect shareholders vested interests the legal function with the expected at the same time, to its legal basis has made a profound analysis, and puts forward the system of legal principles should be "expectations right theory" and "limited liability company, the human joining sexuality", The third part is for our shareholders preemptive right the present legislation reconsidering and review, pointed out that our country shareholders preemptive right system has the following record: rules derived moral risk, the benefit of right term lack imbalance, and form of solidified benefits such as referred to in the design the endogenous institutional predicament legislation contributive scale "and" the computational base, right subject, "equity transfer matters", "the same conditions", equity transfer price rules applicable predicament unknown externalization; The fourth part is to our shareholders preemptive right system, namely the proposed solutions to reshape our shareholders preemptive right institutional predicament and applicable predicament of corresponding countermeasures, including clarify the legal concept shareholder preemptions, optimize the shareholders preemptive right the rules, clarify the rights of shareholders preemptive right boundary, clear infringe shareholders preemptive right the legal responsibility of action.In this paper the main innovation points for: 1. Define the nature of the shareholder preemptive right, and points out that it has formed right and expectations right the double properties, 2. Define the shareholders preemptive right of legal theory, points out its should for "expectations right theory" and "limited liability company, the human joining sexuality", 3. Clear the shareholders pre-emptive right legal ideas, points out its ought to realize human joining together with the endowment of balance, equity free transfer and protecting shareholder interest balance transfers shareholder with a third person, the balance between rights for tastes, 4. Optimization design, puts forward the rule of "shall not purchase" behavior of deadline, shareholder is preferential term, shareholder is preferential exclude applicable, forced contracting obligation, the performance guarantee obligations shall be regulated by the content such as, and puts forward "equal conditions" the judgment standard, the transfer price the cognizance of thinking, 5. Define the right boundary of shareholder preemptive right in the free transfer, equity can easily, and other special occasions for mutual, and shareholder preemptive right whether partial exercise, etc., and puts forward the individual opinion, 6. To shareholders shall exercise shareholders preemptive right and infringed upon the legal effect of shareholders preemptive right put forward respectively legislative Suggestions.