On The Dissenting Shareholder Equity Repurchase Claims

The appraisal rights of the shareholder directly endow the power with the equity for the shareholder, which is a kind of valid mechanism to prevent the controlling shareholders definitely from abusing the majority-capital-control doctrine.《The company law》in our country ushered in this rights, which is a big progress doubtless. This text uses various methods,just as the comparative analysis,the empirical analysis,the canonical analysis and the economic analysis etc. to speculate the relevant theory problems of the appraisal rights of the shareholders and to put forward the suggestions to the perfection of the related system in our country. In addition to the preface and the tag , this text is mainly divided into three parts:The first part, the function speculationg of the appraisal rights of the shareholders. Analyze the historic background of this rights and introduce the evolution of the function of this rights. The writer think that the function of optimizing the Company Governance Structure in the appraisal rights usually can not be valued by people. Along with the development of the company system and practise , the traditional function of providing mobility also evolve to the function of guaranting the realization of the " fair value", lowering the company inner agency costs, controlling opportunism behaviors of the company agents and optimizing the Company Governance Structure gradually.The second part, the system frame of the appraisal rights of the shareholders. This text is mainly revolving around the most important five aspects in that rights to carry on the treatise, which is the company type in appling, the bargain type in appling, the exclusivity problem in appling ,the confirm of the valuation method and the disposure of the shares after the shares being bought back by the company. The relevant issues are concerned with whether acknowledging of the market exception principle in the company type appling. In the bargain type appling, it is mainly involving of the coordination of the three aspects,which are the protection of the minority shareholders' benefits,the possibility of the minority shareholders' abusing the rights of action and the operability of the system. The Preference Reconciliationg Theory prove that while involving of the risk changes of the company foundation structure and shareholders' basic rights, the appraisal rights are given can mostly equilibrium both the protectiom of the shareholders' benefits and the shareholders' abusing rights of action, and the system operation also has a bigger possibility. In the exclusivity problem appling,we think, whether the appaisal rights should become the remedy measure of the exclusivity depends on whether the evaluation in the action reflects to the value of the ex- stock accurately or not. Because of the huge difference of the method which reachs the " fair value" in the traditional evaluation procedure,and both the stock market also exists the possibility of the inefficiency in the price-listing mechanism and the system implementment will also face the complicated legal procedure, in general speaking, we shouldn't admit the exclusivity of the appraisal rights. The evaluation method is the core of this system and is the key of depending on the success of this system. The writer gives the definition to the "fair price" first, and then analyzes the share discount problem of the minority shareholders,and finally analyzs the traditional method in "fair price" valuation and the valuation method in the United Stateses《Principles of Corporate Governance:Analysis and Recommendations》. The writer think we shouldn't admit the share discount of the minority shareholders, because it is a punishment as to theirs' lacking of the controlling position; And in the evaluation method of the "fair price", the writer suggest adopting the experience of the the United States to make the reasonable choice between the management judgment of the board of directors and the general principle in markets with the standard of whether existing the affiliate transactions. At the same time, in the disposure of the shares after the shares being bought back by the company, the writer think, it should be made from the company according to it's business judgment no matter these shares are transfered or writed off and the best choice is to write off. The third part , the defects and perfection suggestions of the《company law》in our country , it is mainly to analyze the corresponding defects in law and then put forward to the suggestiongs of legislative perfection from the current legislative situations of this system in our country. The writer think that the legislation should set out from the actual situation of the company and should pay attention to the corresponding materiality and the operability. In the part of the legislative present, seven defects in legislation are chiefly summarized,which are the problem of narrow appling scope,the problem of not crystalizing the relevant situations in merger,the problem of lacking of the rationality to exclude the shareholders who have no devoting rights,the problem of lacking provisions of the subject capacity for other shareholders' actions, the problem of brief procedure of the appraisal rights,the problem of lacking provisions for the limitation of the appraisal rights and the problem of lacking provisions for the expiration situations of the appraisal rights,and correspondingly the perfection suggestions are given to every defect in the part of the perfection in legislation. In the problem of narrow appling scope, it is suggested that adopting the " preference reconciliation" principle to appropriately expand the appling scope; In the problem of not crystalizing the relevant situations in merger, it is suggested that the law should definitely stipulate that the appraisal shareholders in acquiring company can exercise the appraisal rights in the triangle-merger situation;in the problem of lacking of the rationality to exclude the shareholders who have no devoting rights,it is suggested that the law should admit the appraisal rights for the shareholders who have no devoting rights; in the problem of lacking provisions of the subject capacity for other shareholders' actions,it is suggested definitly using the expanded apply of "continuos ownership requirement principle" to explain this problem;in the problem of brief procedure of the appraisal rights,it is suggested that the law fulfill the procedure,it concludes the problem of the duty of the company notice being stipulated definitly by law,the problem of the duty to put forward to the opponent notice in advance for the appraisal shareholders,the problem of definiting the evaluation method of the fair price and the subject to give the fair price,the problem of definiting the date of the fair price,the problem of redefiniting the time for the pay of the fair price and the problem of definitly stipulating the duty of paying interests for the company and who assumes the suit costs; In the problem of lacking of the stipulations for the limitation of the appraisal rights, writer suggests that the appraisal rights will be deserved to restrict by law in the situation that the baord of shareholders doesn't pass the significant transactions finally and the company lacks of acquiring ability. In the problem of lacking of the stipulations for the expiration of the appraisal rights, writer suggests that the law should stipulate the expiration of the appraisal rights under the condition that the company doesn't carry on the significant transactions and the shareholders don't propose the opponent notice in advance.