Research On Preemptive Right By Share Transfer Of A Limited Liability Company

Limited liability company as an important company form, affects the overalldevelopment of the quality of the national economy research to improve the relevantlegal system of limited liability company in the operation, is of great significance forraising the level of our economy. The preemption of shareholders is the company lawshould be the number of limited liability company, strong closure features and specialcreation, kinds of restrictions on the transfer of ownership of foreign shareholders of alimited liability company free, is the law for the maintenance of old people andinterests of shareholders of a limited liability company, for the stability of the sharesof the limited liability company order and balance under the choice, if can obtainstructure and reasonable design, double the value of the target will also realizeequity transfer of freedom and personal maintenance. Therefore, this paper will try tocombine with real cases have occurred to shareholder’s preemptive right at present,analysis and research the detailed provisions of the " corporation law " the thirdparagraph of seventy-second, and puts forward some suggestions for furtherperfection to the system of shareholder’s preemptive right.This paper consists of introduction, text and conclusion three parts, the text iscomposed of four chapters constitute.In the first chapter, the article first preemptive right system overview, asdiscussed below highlights based. First of all, in the first quarter of preemptive rightthrough the definition of the concept of generalized shareholders preemptive right ofthe meaning and the elements. Then in the second section discusses the shareholderspreemptive right properties, think it belongs to a kind of right of formation, lookingforward to right, and the right of property rights and identity with dual nature. Finallyin the third section analyzes the laws set preferential buy right system legal basis, theauthor holds that the system in the company law is the root cause of the limitedliability company is according to the special nature of the body is established, and themaintenance of lay particular stress on limited liability company people togetherand order of stability and to achieve the balance of interests in all subjects. The second chapter mainly analyzes the exercise subject of shareholder’spreemptive right. In the first section, the author used the method of comparativeanalysis, introduces several different countries (regions) the provisions of thecompany law for the shareholder’s preemptive scope of subject right, study andreference to lay the foundation for later. In the second section, analyzed theprovisions of paragraph third of China’s " corporation law " seventy-second forpre-emptive rights of shareholders subject, think method specified in " othershareholders " refers to the transfer of outside shareholders, all the other shareholders.The third section on the basis of the above problems, the expansion of pre-emptiverights of shareholders to exercise in the scope of the subject to the company and othershareholders specified the transferee of the legislative proposals.The third chapter is the key chapter of this article, some related cases discussed afew shareholders preemptive right in the exercise of the difficulties. The first sectionis about shareholders preemptive right exercise condition problem, emphasized theexercise of shareholders preemptive right must have foreign shareholders equitytransfer this situation happened. The second section discusses the limitations ofshareholder’s preemptive right--the "equal conditions", put forward " determinationstandards and content equal conditions", think to relatively the same as standard isabsolutely equal theory is more reasonable, and the " equal condition" content isdiversified, not only contains the price conditions, at the same time, should also takepayment, performance, and the number of conditions between the period of existenceof the promise or other consideration to the interests of business relations and otherfactors. Section third in the legislation vacancy in our company law, puts forward theneed for pre-emptive rights of shareholders to set a time limit for exercising toprevent preemption right abuse, the length of time to no more than one months isappropriate. The fourth section explores the validity of silent response of purchasepriority, that did not have the effect of declaration of intention, does not operate as awaiver of preemptive right.The fourth chapter, discusses the problem of legal protection of shareholder’spreemptive right. Illustrates the main forms of violations, violations of shareholder’spreemptive right of shareholder’s preemptive right equity transfer contractidentification and shareholder’s preemptive right to relief in violation of the problem.The first section introduces two kinds of tort forms, including the transfer ofshareholders do not perform the obligation of notification and through a " contract of yin and Yang " to avoid the exertion of the pre-emptive rights of two cases. Thesecond section through the analysis of the different theory view point, summarizes theviolations of preemptive rights of shareholders equity transfer contract, in thirdpeople ill as invalid and third people in good faith for the effective point of view. Thethird section, the author distinguish different situation puts forward some ideas on theright relief, when the transfer of shareholder and the third party malicious collusion,preemption can apply for confirmation of the equity transfer contract is invalid; whenthe shareholders alone the infringement, if the contract is not fulfilled, the prioritypurchase right people can claim the preemptive right on the formation, if the contractis fulfilled, the priority purchase right person may request the people’s court forrevocation of the equity transfer contract or request a transfer of shareholder and thethird the buyer to pay economic compensation.