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Dissenting Shareholder's Appraisal Right

Posted on:2007-12-21Degree:MasterType:Thesis
Country:ChinaCandidate:X F JinFull Text:PDF
GTID:2166360212457924Subject:Law
Abstract/Summary:PDF Full Text Request
Dissenting Shareholder's Appraisal Right, means when the general meeting of shareholders makes significant resolutions which will make great influence to the shareholder's benefits, those who have different ideas have the right to request the company to buy their stocks by a fair price, as well as to leave the company. It is an important system in Corporation Law, which provides a way to settle the conflicts of interests between the shareholders when great changes taken place in company's structure. As a way of balance, it not only guarantees the majority shareholders will make the final decision concerning the company's future according to principle of"Majority Decision Rule"but also considers the minority shareholders have the right to choose to leave the company because of their opposing such kind of change.Dissenting Shareholder's Appraisal Right originated from the American Case Law of 19th century, and has gradually been absorbed by the Corporation Law in different countries of the world. With the development of our market economy, there are more and more important businesses between and within the companies, which requires to set up and develop the mechanism of protecting the shareholder's interests. The realistic demand on Dissenting Shareholder's Appraisal Right has already arise in practice. But before Corporation Law revised, regulations concerning this system had not been set up in our country, and sketchiness can be found in " Directions of Articles for Listed Companies" and "Necessary Provision of Articles for Listed Companies Outside the Borders" which have the little effect of the law. The newly revised Corporation Law officially stipulate the Dissenting Shareholder's Appraisal Right, which is no doubt a tremendous progress .In this paper, through analyzing the theory and value of the Dissenting Shareholder's Appraisal Right , and comparing the legislation and judicial practice between different countries, the author mentions some elementary arrangements and tentative plans on how to carry out this new system within the companies in our country and how to carry out it during the judicial practice.In the first part, the author had briefly expounded the definition of Dissenting Shareholder's Appraisal Right, defined those easily confused concepts and clearly pointed out the primary object discussed in this paper. In the second part, the author introduced the theoretical frame of Dissenting Shareholder's Appraisal Right. On the bases of comparative analysis between different schools, the author ascertained the equity of interests as the core of value of this system, and discussed according to this theory. In this part, the author also expounded the character of Dissenting Shareholder's Appraisal Right , which has the characteristics of inherit right, legal right, self-beneficial right, Independent decided right and exclusive right.In the third part, the author expounded the legal application of Dissenting Shareholder's Appraisal Right, compared and analyzed the rules of Corporation Law between different countries from many aspects like applicable types of the companies, concrete items, types of shareholders, dissenting procedures, evaluation of the stock prices, resources of capital and so on. The aim of such analysis is to seek some common rules and the legislation essence of this system, so as to combine with our economic reality and application of the Corporation Law , and finally find out the proper operation pattern.In the fourth part, the author made comments on the related rules of new Corporation Law, and give some elementary suggestions on how to build on the judicial procedures. Although the new Corporation Law has been carried out for a short time, but it can be estimated that this kind of disputes will gradually be added into the judicial relief procedure. Because the Corporation Law does not include the details of how to carry on this kind of litigation, how to realize the Dissenting Shareholder's Appraisal Right becomes a difficult problem for the courts. In this part, the author proposed some ideas on the problems cried for resolution concerning the procedures, such as whether to apply with common procedure or special procedure, subject of the right of action, matter of jurisdiction, matter of time limit, way of evaluation and ect., and hope that it will provide some help for future study and judicial practice.
Keywords/Search Tags:appraisal right, interest balance, fair value, judicial procedure design
PDF Full Text Request
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