Research On The System Of Shareholder's Withdrawal Right Of The Limited Liability Company

As one of modern company important forms, the limited liability company's unique superiority receives the multitudinous investor's favor from the establishment to the present. However, the limited liability company's these distinctive qualities also have had many questions in reality. Among them, one of matters which are always received the various countries' law of corporation and scholar widespread concern is: in the limited liability company, the young shareholder's expectation benefit fails basically, simultaneously cannot withdraw from the company smoothly. Facing this question which the young shareholder of the limited liability company face, the various countries' legislation and the judicial organ in abundance take legislate or the legal precedent forms to provide certain relief way with the young shareholder, so that the young shareholder can extricate from the difficult position. The main relief way includes: the system of judicial dissolution and the system of withdrawal right. The system of judicial dissolution is one kind of thorough plan, as for solving the difficult position young shareholder faces. However, judicial dissolution certainly not best plan. Therefore, the various countries generally designed other substitutional relief ways, our country have also used the correlation strategy in the legislation and theoretically the system of judicial dissolution have had much research, but research of the system of withdrawal right regarding its substitution means is quite defective. Opposite in practices in the complex company, can appear unavoidably somewhat lacks the ability to do what one would like, moreover its legal rule itself is not comprehensive and has not strong feasibility and so on, these also causes that withdrawal right can not achieve the original intention when it set up. Therefore, for the true realization of withdrawal right 's goal of protecting the young shareholder benefit, causing the young shareholder's smooth withdrawal company which squeezes, our country must consummate stipulation of withdrawal right in corporation law unceasingly. This article is for the purpose of through analysis of the difficult position and the reason which the young shareholder faces in the limited liability company and models the overseas withdrawal right, hope consummate our country's withdrawal right in limited liability company by the time, causes to realize withdrawal right's true protection of the young shareholder. Speaking from structure, the full article is divided into four parts, besides introductions and conclusions.The first part introduced that in the limited liability company the young shareholder faces the difficult position and analyzes the reason, in the limited liability company the young shareholder faces difficult position, also to say, is the realistic foundation of the limited liability company shareholder's withdrawal rights. In the company practices, the difficult position which the limited liability company's young shareholders face is complex diverse. In the foundation of summarizing the difficult positions which the young shareholders faces, this article summarizes four aspects which the young shareholders face: the shareholder invests by long-term locking, the shareholder is pushed aside outside the management level, the stockholder's rights are diluted and the shareholder are been stranded in the company deadlock. After the detail introduction of difficult position which in limited liability company the young shareholder faces, the article analyzes the reason why the young shareholder suffers this difficult position in the limited liability company. There are mainly three reasons: First reason is the limited liability company itself characteristic. Secondly, abusiveness of the malfunction of majority rule. Thirdly, law of corporation regarding 'capital credit' defending stubbornly.The second part elaborated the rationale of withdrawal right of the limited liability company's shareholders. Not only the existence of the system of withdrawal right have the reality need, moreover theoretically also has the full basis. This part, from the legal science and the economic angles, elaborated the system of withdrawal right of the limited liability company shareholder. Firstly, the existence of withdrawal right of the legal science rationale is the company contract theory and the benefit balance theory. The company contract theory thought the company is merely one kind of contract between shareholders. The company's all quarters must be completely free or in principle is free when portray the contract arrangement between them. According to this, on the aspect whether choose to withdraw from the company, the shareholder also has the complete freedom. But from withdrawal right's history origin and the value embarks, the benefit balance theory thought the rationale's establishment of this system is the right balance and the restriction, namely, balance and restriction between majority shareholder's decision-making power and minority shareholder's withdrawal right. Also namely, stemming from the benefit balance consideration, withdrawal right enable the weak trend investor who is not willing to accept the majority shareholder decision-making to obtain the fair compensation, achieve to both satisfy the majority shareholders to transform the desire which the company manages, provided the compensation to the objection shareholder and shareholder suppressed who hoped withdraw from company, the goal which or which shareholder suppressed in the company withdraws early from in the non-voluntary change investment. Next, withdrawal right's economic rational——benefit counterparts theory. This theory believed that the enterprise is a group including benefit counterparts'series of multilateral contracts among the shareholder, superintendent, staff, creditor, supplier, customer. Common interest maximization of these benefit counterparts is company's goal. Therefore,whether the company lasts with the movement condition, not only affects shareholder's benefit, but also directly or affects indirectly these beneficial counterparts' benefit. But if in the limited liability company the young shareholders withdraw from the company through judicial dissolution, this can give other beneficial counterparts a heavy losses. But the system of withdrawal right can avoid the heavy loss which the judicial dissolution creates to other benefit counterparts.The third part, the comparative analysis on the withdrawal right of the overseas limited liability company. The legislation and the judicial practice of the withdrawal right about the overseas limited liability company compared with domestic system are much more mature, therefore, after demonstrating the rationale of the existence of withdrawal right, this article launches to the representatives national of the mainland legal system and British and American legal system——Germany and US about comparative analysis of the production and the development present situation of the withdrawal right, I hoped provide the foundation for the next part of withdrawal right of our country limited liability company. First, the author introduced the withdrawal right of the production and development of the Germany Limited liability company. Next, the author introduced the withdrawal right of the production and development of the American close corporation. Finally, the author synthesizes countries on behalf of German and the American two big legal systems about production and the development present situation of the withdrawal right.The fourth part is the consummation of the withdrawal right of our country limited liability company. First, on the foundation of the third part regarding in the overseas legislation comparative analysis, from our country's new "Law of corporation" about the stipulation of the withdrawal right of the limited liability company, analyzes insufficiency of the stipulation in our country's new "Law of corporation" at present. The main insufficiencies is: the main body who enjoys the withdrawal right, the condition that the main body exercise the withdrawal right, determination of the reasonable price, the procedural of exercising the withdrawal right, expiration of exercising the withdrawal right. Next, from the system of the withdrawal right itself and coordination of it and other systems, the author proposed the suggestions to consummates our country's the withdrawal right. Regarding the of consummation the withdrawal right itself, the author elaborated from the main body who enjoys the withdrawal right, the condition that the main body exercise the withdrawal right, the determination of the reasonable price, the procedural of exercising the withdrawal right, expiration and limitation of exercising the withdrawal right and the consequence of exercising the withdrawal right. Coordination between the system withdrawal right with other system, the author mainly has discussed the coordination between the system withdrawal right and removes a name the power system, other relief measures, our country capital system, the protection of the creditor, also proposed opinion and the view on how to coordinate between them.The conclusion of this article is that the stipulation of present "Law of corporation" on the withdrawal right of the limited liability company has some flaws, this causes the protection of weak trend shareholder's of limited liability company 's to have legal barrier, simultaneously, and the withdrawal right just set up and waits for coordination with other system relations further. Therefore, regardless of looking from the withdrawal right itself and coordination with other systems, our country's later legislation all must perform to consummate. This article innovation is: 1. the author proves from the legal science angle, moreover the introduction of the economic theory - - benefit counterpart's theory, for the withdrawal right to provide the rationale from the economic.2. In the model of advanced experience of overseas advanced legislation and the judicial practice development and the foundation of domestic concerned scholar's research, author proposes the mechanism of quite realistic feasible price of stockholder's rights.As a result of the certain difficulty of acquisition of information, specially the overseas material, again adding the limitation of my written ability and the state-of-art, so some questions on the withdrawal right are studied insufficiently thoroughly, these may be the weakness of this article. In addition, this article research has not been able to include all the questions and details of the withdrawal right of limited liability company shareholder, so these will all continue to study in the future.