Study On The Legal Problems Of Preemptive Right Of Shareholders

One of the limited liability company as the main forms of modernenterprises, personal and capital is its dual characteristics. The peoplecombination character makes the relationship between trust and cooperationbetween the special of the shareholders of a company with limited liability. Thedevelopment of market economy makes all kinds of resource flows morefrequently, equity transactions also increased, in order to safeguard theshareholders of a limited liability company to join the company’s expectedbenefit and maximum holding limited liability company, the original businessmodel, the law of shareholders pre-emptive right system. But as China’s"company law" provisions of shareholder’s preemptive right is not clear, in thejudicial practice, easy to cause the shareholders of limited liability companies offoreign equity transfer disputes, is not conducive to the stability between theshareholder and the company. Therefore, research on system theory is necessaryfrom the shareholder’s preemption.This addition to the introduction and conclusion, the text is composed of four parts.The first part introduces the basic theory of the shareholders of the limitedliability company priority purchase right. First carries on the analysis to itsdefinition, through the analysis of it that is a kind of civil priority, and furtheranalyses its nature, it is the legal priority right, right of formation. Second,discuss the value of the system of shareholder’s preemptive right, that the valueof the system is maintenance of company of limited liability of shareholders toachieve reasonable expectation, maintenance, maintain the company’s businessmodel and promote economic efficiency.The second part of the exercise of the rights of shareholders of a limitedliability company purchase priority is discussed. First of all, only the transfer ofshareholders to transfer the shares that appear, other shareholders have theopportunity to exercise the priority purchase right. Secondly, to judge its coreelements. Through to the judicial practice "absolutely equal theory" and "relativeequality theory" analysis, exercise the preemptive right of shareholders toexercise should be to "absolutely equal theory" as the basis, to "relatively equaltheory" as a supplement. At the same time, special circumstances "relatively equal condition" is applied to analyze and explain. Finally, because the exerciseperiod of Chinese "company law" pre-emptive rights of shareholders is notclearly defined, but in practice, it is necessary to have a relatively uniformstandards, the study of this problem, including the shareholder’s preemptiveright exercise period starting time, determine the time and the litigation duringthe exercise period.The third part is the legal regulation of shareholder’s preemptive right ofspecial problems. Firstly, equity can split transfer are discussed. The theory of"positive" and "negative" two views so through the analysis of these two kindsof views and then draw the equity should be the overall transfer and should notbe divided transfer, but the third men agreed to buy the remaining shares, andthe people’s interests are not affected, so the priority purchase right people canexercise the priority purchase right. The second is to exercise the special transferof pre-emptive rights of shareholders, including inheritance, gift, reciprocity,common equity shares segmentation, to enforce the five aspects of the problemare described.The fourth part is the legal protection of shareholder’s preemptive right. Due to shortage of legal protection in the law so in theory of shareholder’spreemptive right is discussed.