An Analysis On The Equity Transfer Disputes Case Of Zhang Sues Shi Long Company’s Shareholder And Some Others

Existing "Company Law" Article72made a more detailed regulations of thepre-emptive rights to shareholders，but these regulations merely on the level ofprinciple. As to the complexity of their equity transfer issues，these provisions ofprinciple is far short of dealing with the problems that arise when the equitytransfer happens. Therefore，the shareholders pre-emptive rights currently becamethe most controversial.On the equity transfer dispute case of Zhang and Shi LongCompany，the typical issues of how to identify "the same conditions"，thedefinition of the period of shareholders pre-emptive rights and the effectiveness ofthe equity transfer agreement signed between transfer of shareholders andnon-shareholders’ equity of third party shareholders，which Zhang encounteredduring this dispute. And combined with the theory，when the conditions of theequity transfer can determined and be quantifiable，the absolute equality should betaken when the shareholders use their pre-emptive rights. And therefore theadditional three conditions based on equity transfer conditions that Zhang putforward should not belong to the category of "the same conditions". In the case ofthere’re no laws to stipulate the period of shareholders preemption rights，andaccording to the principle of private autonomy，the main contract based onreasonable libertarian in its pre-emptive rights under the convention of consensusexercise period has certain effectiveness. Thus Zhang failed to complete thepayment within the time limit that the two sides agreed means that he gave up hispre-emptive rights. Due to the independence of the validity of the contract，there isonly need to check one thing to determine the validity of the contract，you onlyneed to see whether the content of the contract itself applied to the contract lawprovisions or not. As the equity transfer contract that Shi Long Company and other19shareholders singed with Fang Bo Investment Co. Ltd. is in line with thecontract requirements in force，so the contract is valid. Moreover，on the basis ofthis analysis， suggestions have been proposed to improve shareholders ’pre-emptive legislative: a clear exercise of shareholders’ pre-emptive "the sameconditions " standard，pre-emption right to exercise the option period and transfersigned by the shareholders and third parties question of the effectiveness of thetransfer agreement.