A Study Of Several Problems Of The System Of Shareholder’s Preemption

The preemption of shareholders is when the shareholder of the Company Limitedexternal transfer of equity, other shareholders enjoy the rights to purchase of theshares which is under the same conditions precede over non shareholders transferee.Our original Company Law of the People’s Republic of China established the systemof shareholder’s preemption in the aspect of legislation, and also restricted which iscompliant to Limited Liability Company; New Company Law of the People’sRepublic of China add some content in inherited the original basis, but the stipulationis still simple. Therefore, the study for preemptive right system is most important.This article that in the context of significant major problems through a real caseanalyses main exercise, the exercise period, the exercise conditions, part of theexercise and relief in the preemptive right system; that in the context of differentviewpoint in Theoretical circles, reference different law of other countries and regions,put forward proper reasonable solutions, and use it to resolve significant majorproblems in the case.For range of the main exercise, which is the other shareholders in Company Lawof the People’s Republic of China stipulates, the other shareholders should be allshareholders except the shareholders, including agreeing shareholders and disagreeingshareholders. It is believed view which the person of preemptive rights as prosecutorand shareholders as defendant when confirming the status in litigation of every relatedmain part. But there is some debate about the status in litigation between the nonshareholders and the company. It should become the third party without IndependentClaim in lawsuit because there is no direct stake between company and equity transfer.And the status of non shareholder’s lawsuit is different due to its different subjectivemental status. The importance is apparent which Equal conditions as shareholder’spreemptive right exercise conditions. The determining standard of equal conditions isdifferent under different conditions of only stipulate the equity price and attach other purchase conditions between the both equity transferred, it should apply separatelyabsolutely equal theory and relatively equal theory. Although part of the exerciselooks like not meet to the requirements of the Equal conditions, it actually alsoaccords with original intentions of preemptive right system, and also it is advantagesoutweigh the disadvantages that allow part of the exercise, so part of the exerciseshould be permitted. Comprehensive consideration of all the circumstances, thirtydays is the most suitable for the exercise period of the pre-emption rights whichshould not be too long or too short. There are different methods to rescue theshareholders’ pre-emption rights when it was violated, well we should take themethod that the most practical solution to the problem, the most simple transactionprocedure, that can stabilize the order and can maintain the three party rights. It is thebest method to appeal to the court to exercise the pre-emption rights directly, but weshould consider a great diversity of situations in real life, we should respect thedifferent appeals of the party.