A Study On The Judicial Relief Of The Preemption Right Of Shareholders

Pre-emptive rights of shareholders of the Limited liability company share transfer evolves from the pre-emptive rights of civil law,which specifically embodies the Company Law in the pre-emptive system of civil law.The system set is in order to restrict the shareholders to transfer unscrupulously the equity.Although the restriction on the share transfer reduces the efficiency of market transaction to some extent, while in the long term, the system is designed to ensure people combination, to maintain the stability of company, to guarantee the interests of new entrant of new shareholders as well as to maintain the market economic order. With the deepening of market economy, market-based allocation of social resources along with the unique feature of human economic sense, that is, pursuing profit, the cases involving the pre-emptive rights of shareholders become more and more.According to the rough estimate of author’s access to the documents and information, the proportion of share transfer disputes are about half in corporate law cases. Currently, pre-emptive right system is controversial on China’s judicial practice and theory, meanwhile there still are some issues not confirmed.A pre-emptive rights dispute case is quoted in the foreword of the article, it is the origin of the study. Besides foreword and conclusion, there are five chapters in the article.The first chapter describes the basic connotation of pre-emptive rights of shareholders. The chapters discusses the legal basis of pre-emptive rights of shareholders based on the definition of pre-emptive rights of shareholders as well as analyzing the nature of pre-emptive rights of shareholders, which make the groundwork to protect the value of pre-emptive rights of shareholders in later chapters.The second chapter states the implement issues of pre-emptive rights of shareholders. This chapter, firstly discusses the enforcement subject of the pre-emptive rights,which discussed in the direction that dissent and defective capital contribution shareholders whether they are subject of pre-emptive rights; then we elaborate identification of equal conditions on exercise of pre-emptive rights of shareholders, afterwards the discussion of validity of enforcement of pre-emptive right; finally we demonstrate some issues of exercise of pre-emptive rights of shareholders.This chapter provides precondition for the following chapters.The third chapter discusses the infringement manifestation of pre-emptive rights of shareholders by analyzing cases. We get the reasons for infringement by summarizing various infringement manifestation in actual cases. It is combined above mentioned content to state the necessity of judicial remedy when shareholders’pre-emptive rights have been infringed.The fourth chapter summarizes our current remedy way of infringement of pre-emptive rights. Analyzing actual remedy way as well as summarizing the reasons for infringement as above stated, we further gain the current remedy deficiencies.The fifth chapter proposes the improvement program for remedy methods of infringement of pre-emptive rights. Firstly, this chapter sums up the above mentioned improvement for infringement constituent elements of pre-emptive rights of shareholders; secondly re-judge the contract validity of infringement of pre-emptive rights of shareholders; finally analyzing the above mentioned experience and the current remedy defect, we propose that apply different remedy method in different stage of share transfer, which contributes to the efficient and steady operation of company and even market.