Research On The Appraisal Rights Of The Dissenters

The principle of “Majority Decision Rule” has become a basic theorem of nationalcompany law in the modern commercial society. However, if we abuse this right, the minorityshareholders are easy to be enriched by the majority shareholders. As an important system inCorporation Law, the appraisal rights of the dissenters have changed the situation that theminority shareholders’ rights were ignored. The appraisal rights system is an extremelyeffective system in protecting minority shareholders’ rights; the appraisal rights of thedissenters embody the interests balance between individuals and the companies. DissentingShareholder’s Appraisal Right originated from the America, and has gradually been absorbedby the Corporation Law in different countries of the world. The newly revised CorporationLaw of People’s Republic of China in2005officially stipulates the Dissenting Shareholder’sAppraisal Right by two articles, which is no doubt a tremendous progress. But whether theregulations concerning this system or practices had not been set up in our country, and can notmeet the realistic demand. Therefore, research on this effectively system can make up for theblank and then we can master it, this system will develop faster and better in our country.This paper discusses and analyses the relevant provisions which is very important andcontroversial. Based on the background, the author mentions some elementary arrangementsand tentative plans. First, the author had expounded the scope which the system applies to.The object of the appraisal rights of the dissenters focus on the characters of the companies itwill apply to. Not all the companies can be applied for such kind of right. Then, the authorexpounded the legal matters of repurchasing. According to the different countries legislationcomparison analysis, the separation and merger of the companies, alteration of the articles ofassociation as well as important assets transfer, leasing and replacement should be the legalmatters of repurchasing. And then, the author expounded the types of shareholders. Owning tothe different structure of the companies, not each shareholder gets his or her appraisal rightwhen they hold dissents. The author expounded the shareholders who don’t have voting rights,or have defects on capital contribution, existing shareholders and whether the entity of repurchasing shares should include the shareholders who agreed to the company’ resolution.On the basis of that, the author expounded the core element of the appraisal rights of thedissenters, which is to determine the reasonable value of the shares that determines whetherthe dissent shareholders’ interests can be protected fairly and efficiently. The author gives anintroduction to the different kinds of appraisal models, appraisal method and some otherrelated factors. The next part is about the procedural application of the system. This partcontains internal procedure and judicial procedure. Finally, the author expounded the specialissues about this system. This part includes the immunity and conversion, the protection ofcreditors, the processing of repurchasing shares, the source of funds and the condition of void.In order to improve this rule, with the methods of historical analysis and comparison analysis,the author not only analyzes some related issues, but also analyzes and reviews our currentlegislation and the applicability of law. The author gives some suggestion, and hope that itwill provide some help for future study and judicial practice.