On The Appraisal Rights Of Dissenters

The history of the modern Company Law is just a history of fighting for shareholders' rights protection. In fact, the Company Law is a protection law for shareholders. It's been a long time that on the edge is the rights and interests protection of the shareholders of listed companies or of the shareholders of non-listed companies, especially of the minority shareholders of the limited liability companies. Therefore, it's an everlasting topic of the company law to strengthen the protection power of the minority shareholders' rights and interests. The primary principle of legislation of Company Law of People's Republic of China [2005] is to strength the shareholders' rights protection and to respect the shareholders' value. Article 75 and Article 143 of Company Law of People's Republic of China [2005] are both about the appraisal rights of dissenters for the limited liability companies and the joint stock limited companies. It's a milestone for the rights and interests protection of the minority shareholders. However, the issue of law doesn't mean it has been done forever. With the implementation of laws and the development of theories, the Company Law shows its weakness on the appraisal rights of dissenters day by day, it's too restricted and is lack of feasibility. Therefore, many people in this field say: it seems there, but actually not.This paper is about the appraisal rights of dissenters. In order to improve this rule, with the methods of historical analysis and comparison analysis, the author not only analyzes some related issues, but also analyzes and reviews our current legislation and the applicability of law. There are four parts in this paper except the introduction and the acknowledgement.The introduction shows the issue background of the appraisal rights of dissenters in Company Law of People's Republic of China [2005], some problems found during its implementation and the urgent need to improve the rule.Part one gives an introduction of the definition and the nomological basis of the appraisal rights of dissenters, as well as the role it plays in the protection system of the minority shareholders. The appraisal rights of dissenters means when the shareholders' meeting makes a resolution that has great effect on the shareholders' interests, the shareholders who are dissenting from the resolution have the right to request the company to buy their shares at a fair price and quit from the company. The appraisal rights of dissenters are based on the three theories: the rights of expectation theory, the theory of group resolvability and the theory of equity. And now, it has been developed into an indispensable rule in the modern company law.For our legislation reference, part two introduces the appraisal rights of dissenters in other countries and areas in comparison, mainly of the substantive rules and the procedure rules. The substantive rules include the application situation, the type of company and the shareholders scope while the procedure rules include the exercise procedures, the share pricing and the lapse of right, etc...Part three shows the necessity, the legislation evolution, the substantive rules and the procedure rules of the appraisal rights of dissenters in China. And then it analyses Article 75 and Article 143 of Company Law of People's Republic of China [2005], giving detailed anatomy of the application situations, the type of shareholders and the procedure rules etc.Part four is about the shortages of and the improvement suggestions on the appraisal rights of dissenters. The shortages are: the application scope is too small; there is no reasonable definition of application in a merger; it's easy to evade application; the stipulated procedure is difficult to follow, etc.. They need to be improved to meet the economic development and to bring it into play efficiently. In the author's opinion, the specific application situation of the appraisal rights of dissenters for the limited liability companies and the joint stock limited companies should be enlarged and detailed. Besides, the author also gives some suggestions on how to formalize the non judicial proceedings and judicial proceedings, as well as how the court should decide on the share pricing.