The Study Of Shareholders’ Preemptive Right Of The Limited Liability Company

Since entry into force of the present Act, the Companies Act in respect of a number of academic research system has never been interrupted, limited liability company shareholders pre-emptive rights system as a specification of a limited liability company equity transfer is an important system, it is a limited liability company to guarantee people together, balanced interests of all parties and safeguard the smooth operation of great significance, and therefore this paper, a limited liability company shareholders pre-emptive rights as a research object. Requirements for the development of market economy equity legally transferred in order to achieve optimal allocation of resources and safeguard the legitimate interests of the shareholders, thus contributing to the company’s development. However, the equity transfer involving the interests of shareholders, particularly in the relationship of trust based staff, a limited liability company, the internal transfer of equity ownership structure generally does not make the changes, and then does not make the control of the company fall into the wrong hands, but equity transfer will affect the transfer of foreign shareholders, the company’s existing shareholders and the interests of non-shareholder third person, the third person joined the company as by the transferee equity, it may cause the company’s existing shareholders interests are jeopardized, or even control of the company transferred to the hands of a third person, the old shareholders and third parties due to lack of trust, understanding not enough, in many ways, will inevitably come into conflict, sparking disputes, internal strife continued bound to affect the company’s development. So when some of the other shareholders do not consent, the transfer of ownership of foreign shareholders can not achieve the purpose.So to balance the interests of the tripartite main body, the shareholders right of first refusal system arises at the historic moment.Law in China in2005after major revision, a limited liability company on the part of the equity transfer do more detailed provisions, but in the system and in practice there is still some deficiencies. Moreover, with the deepening of market-oriented, the shareholders pre-emptive rights regime legislative technique and other issues become more prominent, procedural requirements defects vague legal provisions, resulting in judicial practice is difficult to operate. In this paper, law and economics analysis, comparative analysis, value analysis and other research methods to explore, solve these problems, try to find a solution to the problem, resulting in the protection of shareholders’pre-emptive rights regime benign operation, played a positive meaning.Body text of this paper is divided into four parts, except the introduction and conclusion:The first part is a brief overview of the shareholders pre-emptive rights. The following brief description of a limited liability company on the concept of pre-emptive rights of shareholders, Inc. to its shareholders with pre-emptive rights for the discriminant analysis, and described its legal nature, conditional, personal exclusive features, a comprehensive analysis of the scholars on shareholders’ pre-emptive nature of the doctrine, established the right of formation properties. Turn right to buy preferred shares to shareholders and institutional value of the theoretical basis of the analysis, specifically discusses autonomy, maintaining order and improving the legal basis of the value of respect, analysts pointed out that the limited liability company to maintain shareholders’ pre-emptive rights for people combination LLC to balance the interests of all parties to maintain control of the company and to protect the interests of the shareholders expect the value of the shareholders’pre-emptive rights exist to illustrates the shareholders in preference to other people to buy stake in significance.The second part, the foreign limited liability company shareholders on right of first refusal provisions.Shareholders’ pre-emptive rights provisions concerning foreign can be divided into two modes, the statutory patterns and conventions mode. Statutory model represents countries and regions in France, Japan, the United States and Taiwan in some states, from which national legislation and regional laws in the main, procedures, duration regulations, statutory pattern can be seen on the effective maintenance of the company’s "co-author of and the positive significance of corporate control, especially France and France for co-author of maintenance, not only provides consent and pre-emption provisions, but also provides a designated third party purchase system. Furthermore Macao and France established price for the transfer of ownership makes equity transactions carried out smoothly. But these countries and regions legislation limiting conditions for the equity transfer defect, is not conducive to an equity transaction. Conventions mode for Germany, the United States related to the state, as well as shareholders ’pre-emptive rights for the United Kingdom from the main contract and contract provisions on the content to be analyzed, showing that the agreed mode, the maximum safeguard the shareholders’ equity transactions autonomy and efficiency advantages. The limited liability company for our shareholders pre-emptive perfect system provides a reference.The third part. On China limited liability company shareholders pre-emptive rights regime studied. For our shareholders in the equity at this stage about the aspects of pre-emption on the basis of legislative provisions.By this stage, limited liability company of the shareholders pre-emptive legislative status quo analysis, pointing out the problems of pre-emption, one legislative model defects, because of China’s mandatory statutory rights mode, transaction costs lead to increased legislative intervention and reduce the efficiency of equity transactions; The second is vague provisions applicable conditions, specific, such as "equal conditions" statement is too abstract blur consent of virtual home, the exercise period of uncertainty and preference shareholders can exercise the right to buy part of the controversy, leading to pre-emptive rights of shareholders practical operation difficult, social waste of resources, damage the interests of the relevant shareholders; Third remedies omissions, resulting in violations of shareholders’pre-emptive rights issue, the interests of making pre-emptive rights are not protected, and the abuse of shareholders’pre-emptive rights issue, making the transfer of the shareholders’legal rights are being infringed.The fourth part, improve our limited liability company shareholders.In view of the limited liability company shareholders’ pre-emptive system problems, make specific suggestions for improvement. First, improve our legislative model that reconstruct our shareholders pre-emptive rights legislation legislative mode. Legislative models from abroad on contract provisions giving shareholders greater autonomy, and this is the respect for the autonomy of the shareholders. Second, for the applicable provisions of the conditions to be perfect, one is perfect "equal conditions". Second, the abolition of shareholders’ consent. Third, a clear exercise of shareholders’ pre-emptive rights period. Four partial exercise of shareholders’ pre-emptive rights is negative, through the affirmation and negation said said comparative analysis of the partial exercise of the right of priority to support negative views. Finally, the improvement of remedies. Shareholders’ pre-emptive rights against infringement issues, put forward the corresponding remedies. Before analyzing the case of a violation of shareholders’ pre-emptive rights under the equity transfer contract to develop the effectiveness of, and thus leads to a shareholder may be made subject to tort tort litigation seeking relief, the court equity transfer agreement to this effect in accordance with the judgment, by the infringement of the shareholders, assignment of shareholders and third parties and may be in different circumstances to obtain damages. Shareholders ’pre-emptive actions against abuse, you can make this restriction, such as time limits, the same conditions do not meet the interests of society as well as to limit the exercise of shareholders’pre-emptive rights charter can impose restrictions.In short, through the pre-emptive rights of shareholders of a limited liability company’s preliminary study, learn from foreign advanced views in order to improve our shareholders’ pre-emptive system to make it play a greater role.