Research On The System Of Dissent Shareholders' Claim Of Share Purchasing

The appraisal right is a right in which shareholders can require corporation to purchase stocks at a reasonable price in a legal procedure and quit corporation when they raise an objection to some important trade affair which has been got through at the shareholders'congress. Its substance is that the shareholders have right to rescind a contract and quit corporation on a specific condition.The appraisal right system originates from American Corporation Law, which can be traced back to 150 years ago. The establishment of this system in the corporation law has a close connection to the development in the economic structures and voting system. As economy develops, especially after"Majority Decision of Capital Rule"replaced"Unanimity agreed principle"as an universal principle in the corporation law, the contradiction between and justice promotes the establishment of the of appraisal right system. The appraisal right system was established on five basic theories, they are"the theory of incomplete contract","the theory of expecting right","The association may the divisible theory and the right balance theory in the Continental Legal Family","the theory of cost and effectiveness"and"the theory of behavior finance".Majority Decision of Capital Rule played an important role at its early stage, greatly improving the efficiency of corporation management and decision-making and promoting corporation mobility. But this change has resulted in such a fact that most shareholders would easily infringe minority shareholders'equity and they lose their veto power on the corporation affairs and decision-making, so that they have to confront more risks from agent. On the precondition that corporation can keep a higher efficiency and mobility on the corporation's decision-making without shaking the foundation of the"Majority Decision of Capital Rule, they need a new system t solve problem, thus providing an actual support for the establishment of the appraisal right.The value of the appraisal right is mainly embodied in the management of corporation and the protection of the minority shareholders. On the one hand, referring to corporation management, the phenomenon of"Empty Shell"and the minority shareholders'nonfeasance on their voting right at the shareholders'congress are two difficulties to solve. The abuse of the"Majority Decision of Capital Rule"makes the minority shareholders'ideas count for little on the decision-making so that a large number of minority shareholders are absent from the congress, directly causing the phenomenon of"Empty Shell". The trend of the"Free-Riding Behavior"commonly exists among the minority shareholders, which makes the system of shareholders'congress lose its original values. Confronted with such a difficulty, the so-called"brain-voting"appraisal right system provides a direct way for the equity capital to quit corporation contract, consequently playing an important part in the corporation management, which is reflected in the following five aspects. To ensure the proceed of some important corporation decision-making, to restrict the corporation agent's opportunism behavior, to prohibit the controlling shareholders'plundering behavior to the minority shareholders, to encourage the minority shareholders to participate in the shareholders'congress, to stimulate obligees'enthusiasm to get themselves involved in corporation's administration, to prevent the corporation agent's complicity with other corporations from harming the benefits of the corporation and other shareholders. On the other hand, as for the protection for the minority shareholders, compared with the relatively perfect system to preserve the benefits of the minority shareholders in most western countries, although China's corporation law is continuously innovating and developing, the current corporation law just hasn't provided a bit of protection for the minority shareholders, let alone formed a complete system, therefore the majority shareholders frequently suppress the minority shareholders, as well, the majority shareholders often prejudice the minority shareholders'benefit by manipulating listed company. Compared with the other ways to preserve the minority shareholders'benefit, the appraisal right aims to aid the system entrusted by the written law, the relatively perfect legal entity and procedure, which is convenient to naturalize and apply. Besides, compared with the shareholders'derivate suit and their suit to claim dismission of the corporation and invalid trade, the appraisal right system is a relatively tender remedy. This operable cash-compensation remedy pattern is widely adopted by the minority shareholders and provides more direct and sufficient protection.The appraisal right is a right confirmed in the China's new corporation law, heretofore, it was sporadically determined in the"Guideline if Listed Company Articles"and"Goes on the market the articles of incorporation necessary provision to beyond the border". But apparently, these two regulations effectiveness is excessive low and inconsistent with the urgent legislation to protect the minority shareholders. So the issue of the new corporation law makes compensation for this simple system. To a certain extent, the appraisal right transplantation in the new corporation law had relieved the conflict between the controlling shareholders and minority shareholders, efficiency and justice. But, compared with western countries, China hasn't set up a complete appraisal right system, so its actual operability needs to strengthen. Based on the design framework, we suggest the following construction of relative system for the appraisal right. Firstly, to reform and perfect the Company Capital System. The dissenter's capital exit behavior and the corporations'supplement capital behavior consequentially cause the changes on the corporation capital, so the corporation is required to apply a flexible capital system. In the international circle, the switch of the corporation capital system from the legal capital system to the delegated capital system is a new trend in the reform of corporation legislation. In order to conform the new trend, China ought to implement the transition from the legal capital system to the delegated capital system as soon as possible. Secondly, to set up a system of network shareholders'congress and the network voting system. The frequent information transmission between corporation and shareholders is a major characteristic of the appraisal right, its aiding function requires positive participation in the shareholders'congress as its precondition. We suggest the recognition of the legal validity of the network shareholders congress, allowing the board of directors to determine the pattern of the shareholders'congress independently. Thirdly, to concretize the regulations on the shareholders'rescission right, veto right and direct litigation right. China's Corporation Law doesn't elaborately regulate the practice procedure of the shareholders'litigation right, which is just generally regulated on the 75th item. On account of its weak actual operability, this recapitulative regulation necessarily concretizes the procedure of about when to administrate, how to administrate and whether to administrate jointly or not. Fourthly, to strengthen the protection for creditors. The corporations'takeover behavior would cause a great deal of corporation property drain, decreasing the corporations'property accountability. Whenever the consolidation, the division, the transfer of operation or the operation assignment occurs, it is necessary to establish obligee protection procedure in advance. Therefore, the corporation is supposed to establish the system of freedom of information and supervision as well as the system of delegated obligee's participation in order to prevent any vicious collusion between corporation and shareholders.The case of"Weichai combine the torch of Hunan jointly"shows a new characteristic in the application of the appraisal right system, including the innovation in the event applicability and the subject of the appraisal right. As a new institution which has been introduced to China recently, the good application of the system greatly lies on its fusion with the actual condition of China. Because simple imitation makes the system lose its vitality, whereas the innovation puts new energy into the system. In this combination case, the bond attempt and innovation has created great space for the development of the appraisal right system and undoubtedly the system will play a more important role in its fields.