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Research On The Share Transfer In Foreign-invested Enterprises

Posted on:2012-03-09Degree:MasterType:Thesis
Country:ChinaCandidate:T W FangFull Text:PDF
GTID:2216330338459410Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As foreign-invested enterprises is an immature form of company which is based on contracts rather than the existence of articles of association, and its establishment, modification and termination muse subject to administrative examination and approval, which leads to disputes, complex legal issues involved, in the field of foreign-invested enterprises (share transfer disputes, dormant investment disputes, mergers and acquisitions disputes, dispute settlement, etc). By selecting one item -- share transfer disputes as the object of study, the writer aims to avoid the share transfer risk, explains how the court applies the law to resolve disputes and issues related to transfer of shares and provides some valuable suggestions. Based on the explicit stipulation on share transfer of foreign- invested enterprises from existing laws, administrative regulations and judicial interpretations, the writer solves specific problems in practice and mainly adopts both interpretation and legislation to discuss and analyze the controversial issue occurring in share transfer of foreign- invested enterprise. In addition to the introduction and conclusion, this paper is divided into four parts: In the first part, on the basis of present situation and question on the effect of approved certificate, the conclusion is drawn that substantial elements should be recognized as foundation to confirm the qualification of foreign-invested enterprises. The second part firstly discusses the basis of other shareholders agreeing to share power in the transfer of foreign-invested enterprises. Secondly, it discusses the nature of contract without the consent of other shareholders or infringement of other shareholders'right of preemption. Finally, the writer comes to the conclusion: If the other shareholders vote against stock transfer, the share transfer contract should be regarded as an invalid contract, and it should not be treated. If the parties in the share transfer contract fail to notify the other shareholders for advice, the share transfer contract should be recognized as a partial invalid contract, which refers to correcting the valid of share transfer. The third part, after discussing the evolution of contracts on the share transfer and the evaluation of validity of contracts, draws the conclusion that without the approval of the administration, the contract is an invalid contract. As the approving scope of administrative structure is some provisions of a contract, therefore, the contract without the parties'application and approval procedures are not wholly avoided, but some needed to be approved are invalid, which specifically refers to the invalidity of share delivery. The fourth part discusses the effect of share transfer when other shareholders use the rights of agreement and preemption. First, it discusses the application of foreign investment law and company law. Secondly, it discusses the application of consent of law and effect of other shareholders'rights of agreement and preemption. Finally, it draws the conclusion: in the share transfer of foreign-invested enterprises, foreign-invested enterprises law should be give priority. Without the consent of other shareholders, the contract on share transfer has been"pre-effect", but not"the effect of the contract". Other shareholders'exercising the right of preemption will force the parties to transfer side effect of the share transfer. The conclusion makes a brief introduction and prospects on relevant issues.
Keywords/Search Tags:Foreign-invested Enterprises, Share Transfer, Approval, Consent, Right of preemption, Law Applicability
PDF Full Text Request
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