On The Transfer Of The Limited Liability Company Stockholder's Rights

The company is a kind association artificial person whose goal is to seek profit. The law of corporation always is maximum limit to seek to make a profit, realizes the shareholder rights and interests maximization to take the company the highest value orientation. Even may say that, the near modern law of corporation history is to protect the shareholder benefit the history. The shareholder is human's foundation which establishes the company, their benefit like cannot obtain legal the full protection, will certainly to vacillate the company system the foundation. In the bad management of companies, the cooperation foundation not is magnificent, allows the shareholder to withdraw from the company , this also acknowledges the stockholder's rights transfer principle. The stockholder's rights transfer dodges the investment risk regarding the share holder, protects the shareholder benefit, guaranteed the company can continue for the people to invest serves, it is very important to the company system existence. Therefore, it is significant to protect the limited liability company stockholder's rights to be effective, to have the foreword transfer, watershed.But October 27,2005 new revision law of corporation, is precisely based on such goal, has made the significant revision to the limited liability company stockholder's rights transfer stipulation. Like the right of consent"when the revision, soon original shareholder's transfers its investment to shareholder outside person, must pass through all shareholder majority to agree" the revision is"shareholder's transfers the stockholder's rights to shareholder outside person, must pass through other shareholder majorities to agree", also is explicitly entrusts with stockholder's rights transfer the right of consent gives other shareholders. Also "will have" to change "must" , the permission articles of incorporation will make to the stockholder's rights transfer with the law of corporation dissimilar stipulation fully will respect the shareholder meaning autonomous potency. Was clear about has solicited other shareholder approvals the form and the answer deadline, namely explicitly solicited other shareholder approvals the form to have to use the written notification, had stipulated the answer deadline for from received notification date of on 30th ,did not exceed the time limit the answer, the law estimated" the agreement transfer ". Also stipulated the purchase power only then in "other shareholders more than half not to agree the transfer" in the situation could produce, exercises the purchase power main body also only to be able to be these did not agree transfer the shareholder, to already agreed transfer the shareholder could not exercise the purchase power .If does not exercise the purchase power , the law estimated it "regards as the agreement transfer". "First purchases the power"revision. Was clear about appeared first purchases the power the condition and exercises first purchases the power the condition, the main body. Only then in passes through the shareholder approval transfer in the situation , first purchases the power only then to appear, moreover only then under the same level condition, first purchases the power to be able to exercise, the main body which exercises is other shareholders, also may be the shareholder which agrees with the transfer, also may be shareholder which does not agree with the transfer .Moreover, but also had stipulated many first purchase in situation solution which the power all exercises, namely "two above shareholders advocated exercises first purchases the power, the consultation determines respective purchase proportion; Consults inadequately, according to transfer when respective investment proportion exercises fist purchases the power" .Full respect articles of incorporation to stockholder's rights transfer stipulation. The new law of corporation stipulated that , "The articles of in corporation have the stipulation in addition to the stockholder's rights transfer, from its stipulation." Obviously, the stockholder's rights transfer rule, is not only can be the process which the law of corporation stipulated" the right of consent", "the purchase power", "first purchases the power" and soon the condition and the procedure, the shareholder may act according to the company and own different situation and the different characteristic, makes in advance in the articles of incorporation is different with the law of corporation each kind of stockholder's rights transfer stipulation.But also has some questions specially is the limited liability company stockholder's rights transfer contract potency, the shareholder first purchases the power to exercise, first purchases the power and the shareholder the right of consent relations to the shareholder has mot straightened out, causes to be able to have a problem in the practice operation. This article differently sets up the legal regulation on these questions through the comparison various countries, unifies our country the actual situation, elaborated solves the question some reference suggestions. This article believed that , also should adopt the establishment to stockholder's rights transfer contract potency to become effective the principle is the principle, the authorization becomes effective the principle or the registration becomes effective the principle for the exception legislation manner .The stockholder's rights transfer gives in the company shareholder register of names to register is resists the company the important document .Certainly, lets the side or the transfer side already proposes to the company the change application, and has submitted the legitimate effective card, like the stockholder's rights transfer contract, the shareholder meeting resolution and so on, the company refuses to register, the company refuses to register, the company cannot own idle the behavior to shirk responsibility. But new law of corporation 33rd third section stipulation that, "The company must registers shareholder's name or the name and it's the spending limit to the company the institution to register, The registration item has the change, must handle the change registration. Not after the registration or the change registration, does not have to resist the third person." This is clear about the industry and commerce registration only to have regarding the stockholder's rights transfer contract resists the third human of potency.Moreover, through first purchases the power to the stockholder's rights transfer the nature and the existence value analysis, and first purchases in the power to the shareholder "the same level condition" indeed to decide the standard and the shareholder first purchases the power to exercise the time question elaboration, obtained the stockholder's rights transfer first to purchase the power the suitable condition. About our country law of corporation stipulated "the articles of incorporation have the stipulation in addition to the stockholder's rights transfer, form it stipulated" the stipulation potency question, we thought is not the articles of incorporation possesses regarding the stockholder's rights transfer stipulation all is effective. Regarding this we may profit from the British and American country judgment examination some rules, like the rational examination standard, the sense of purpose examination standard and the procedural important document and so on further judge the articles of incorporation to the stockholder's rights transfer stipulation validity. About first purchases the power and the right of consent the relational question, through the comparison test analysis, we believed ,the law of corporation stipulated the right of consent is does not have big practical significance, regarding the stockholder's rights transfer limit, it has not its limit function, and first purchases the power to the shareholder to exercise produces the barrier, therefore, must remove the right of consent, only retains the shareholder first to purchase the power on to safeguard sufficiently regarding the stockholder's rights transfer limit. About without other shareholder majorities agreed and other shareholder giving up first has not purchased the power the limited liability company stockholder's rights transfer contract potency question, though concrete to each theory analysis, thought the limited company invests this kind of transfers behavior, the present law of corporation and the correlation law laws and regulations not perform to its nature and the legal effect to stipulate, thus has the obvious , Inspects its nature and the characteristic, we thought must analogize is suitable "Law of contract" 51st related to have no punish the stipulation , confirmed this kind of transfer treats the civil behavior for the potency which decides.