On The System Of The Appraisal Right Of Dissenters In The Joint-stock Company

New Corporation Law of our nation regulates the appraisal right of dissenters for the first time, which can be said to be a great light spot. This system originated from the common law country, as a system to protect the rights of the minority shareholders, when the confliction of interests between the minority shareholders and the majority takes place because of the significant decision of the company, delegate the right to withdraw from the company to the minority shareholders on the premise of obtaining fair compensation. The system is as one means of balancing interests, on one hand, interests of the minority shareholder obtains the justice relieve, on the other hand, the majority send, excluding from interfering, make their decision be carried out smoothly, and then realize win-win. But, according to the stipulations of new Corporation Law, this system is applied restrictedly in joint-stock companies. So, the author in the article has carried on deeper research to the system of the appraisal right of dissenters in order to seek the wider suitable space of this system in joint-stock company .The basic structure of this text is as follows:The Preface :"introduce the necessity that our corporation legislation inject the system of the appraisal right of dissenters".through an analysis of current situation of capital market of our country. Thereupon, introduce the intension, the characteristic and historical origin of this. system, Finally, analyze the regulations on the appraisal right of dissenters in the new Corporation Law, and point out the drawbacks that it exists--the suitable space in joint-stock company is quite narrow, and should perfect Chapter one :"the theory analysis of the appraisal right system of dissenters of the joint-stock company". First of all, the author introduce in comparative detail that the reasonable foundation of the appraisal right of dissenters is suitable in the joint-stock company, especially introduce"Behavior Finance theory", which have criticized the"exceptional principle of the market", and offer the solid theory base for the appraisal right system of dissenters of the joint-stock company. Secondly, described the necessity of the appraisal right system of dissenters of the joint-stock company and confer the choice relation between the market withdraw mechanism and the appraisal right system of dissenters which is a statutory way .The author think that the market withdraw mechanism remains the primary way by which the shareholder withdraws from the company. The appraisal right system of dissenters as the beneficial supplement of the market mechanism, function within the limited range. Finally, analyze whether the enforcement of the appraisal right of dissenters could cause the conflict question between the protection of shareholder's interests and the creditor's interests on brief, and think that only carries on the effective legal structure to the appraisal right of dissenters, would not bring substantive influence to the creditor's interests.Chapter two :"the subject range of the appraisal right of dissenters in joint-stock company". This chapter mainly includes two parts of contents: The analysis of objection shareholder's qualification and sureness of the buy-back subject. Qualification question to the objection shareholders, draw lessons from the foreign legislation, and think when the appraisal right of dissenters is suited in joint-stock company of our country, the opposing shareholders should not only include sign shareholder, but also contain the blank shareholder, in order to effectively protect the interests of the minority shareholders in the joint-stock company. According to the equal principle of the stock right, the shareholders who do not the right to vote should enjoy the appraisal right too. The shareholders to continue have the possibility of malevolence, so the law should not give the appraisal right to them. Shareholders with the flaw for providing funds, who has not lost shareholder's right, should enjoy the appraisal right. About the subject of buy-back, except the company which is extensively approved, the author have introduced the holding shareholders, because of the control status of their advantage, can be regarded as the buy-back subject.Chapter three :"The fact important document that the appraisal right of dissenters takes place in the joint-stock company".Have introduced extensive legislative style and narrow legislative style, have analyzed the main factors that effect the scope of application of the appraisal right of dissenters: National legislation tradition and the trend of legal development, international change trend and the system background of our country, the distribution of shareholder's interests being protected company's cost and validity of decision, and then think, The fact important document of application of the appraisal right of dissenters in joint-stock company should include: Amalgamation and discrete of the company, the altering of corporation's constitutions,the sale and replacement of great assets,the great related trade items of the company and other items stipulated in by-law of corporation.Chapter four :"the procedure regulation on the appraisal right of dissenters applied in the joint-stock company",Mainly have introduced the general procedural regulation of the appraisal right of dissenters in various countries legislation, having described the definite procedure of the share price of buy-back in detail, there are mainly two kinds of modes: fixing the price by agreement and fixing the price with the administration of justice. First of all, consult on the price of buy-back by objection shareholder and company, when being unable to reach an agreement, the shareholder start the procedure of the administration of justice to fix the price. A key question in this procedure is the principle and method of assessing price, which decides whether the shareholder can obtain fair compensation to withdraw from the company or not. Think that it should regard fair value as the principle of assessing, and have introduced the plate way of Delaware, the cash flow discount method, relevant factors method ,three kinds of assessment methods。there is no any kind of method is can be suitable for all situations。So, I think The Corporation Law can require company to stipulate a kind method of assessment properly, in order to prevent the difference from choosing the method.Chapter five :"the legal restrictions on the appraisal right of dissenters in the joint-stock company"Expound the invalid situations for the appraisal right of dissenters, as follows mainly:resolve to be cancelled or not passed, don't exercise right within legal time limit, vote 'Yes' or transfer share, company cannot discharge due debt and company resolve to dismiss, five kinds of situations. Meanwhile, talk on the exclusiveness of the appraisal right of dissenters, and the necessity of limiting to it in more detailed.In summary: have defined that the appraisal right of dissenters can not exist in isolation, it requires the perfection of the related system with it, especially at present, our country's legal capital system, is unable to adapt to the requisition the appraisal right system of dissenters which ask for the capital system with good flexibility, whose reform has been already imperative. In addition, the implementation of the electronic information technology, and strengthening controlling shareholder's sincere obligation. All will create good condition and environment for the appraisal right of dissenters in the joint-stock company.