Study On Legal Issue Of Appraisal Right

Now companies almost practice the way of the resolution called "capital majority", to a great extent, which can lead to a phenomenon that the opinion proposed by shareholders who dissent the resolution(such as the shareholders who are out of control or minority shareholders) is ignored, and damage their rights and interests, so countries around the world introduce the appraisal right at the same time when use the principle of "capital majority", safeguarding the right and interest of the shareholders who dissent. In order to comply with the legislative trend of the world, in 2005,our country provides the appraisal right in "Company Law", respectively, of the article 74, providing an effective way to protect the rights and interests of the dissent shareholders, however, there are a lot of deficiencies and defects in the current legislation.On December 28, 2013, the 12 th meeting of the standing committee of the National People’s Congress reviewed and approved the draft of Company Law, and decided to enforce on March 1, 2014.The revised Company Law modifies twelve terms, changes the minimum registered capital of the company’s statutory requirements into registered capital paid in, cancels investment proportion for the first time, monetary investment proportion for the first time and so on,lowing the standard of company’s setting up, and reducing the burden of the investors through this repair.However there is a pity that this repair says nothing about appraisal right, or it could be said that from 2005,there has not been any modification or improvement about this question.Nowadays, the biggest characteristic of Chinese capital market is a new and in the period of transformation, the economic growth is accelerating, under the condition that the society and economic development is so quick, there must be some problems that could not be dealt with by the provisions provided nowadays.Facing so many problems,this essay is going to write four parts, hoping to perfect some provisions on appraisal right.The first part mainly states the relevant concept of the appraisal right, such as definition, legal nature, basic theory, comparison with other related systems, background and functions, to let people learn about the appraisal right.The second part discusses the repurchase price conditions of appraisal right.We introduced this right in 2005, but existed much deficiencies and defects at that time.Firstly, simply state the difficult application of appraisal right,and through reading,we find that the appraisal right is established in Company Law 2005,although the rights and interests of the shareholders are got a certain degree of protection and maintenance, the legislation of our country still stay on the surface, without being protected comprehensively. In addition because the law of fuzziness and uncertainty, it brings to justice and practice difficulty.And then, following the discussion of word "reasonable" and the mechanism of judicial discretion, we conclude that our country should establish the judicial price mechanism, and put forward about the calculation method and time of "reasonable" price.The third part discusses the process of appraisal right, pointing out the defects and deficiencies in this respect.Through comparison study, it is suggested that the regulation shall provide specific provisions to clear the rights and obligations between company and the shareholders, and do not make appraisal right name only.The forth chapter mainly discusses balance between the interests of company shareholders and creditors.This chapter firstly compares the share appraisal right and decreasing investment, compares the same and difference between appraisal right and withdraw the capital contribution of similarity, it is concluded that the essence of appraisal right is the same as the essence of withdraw the capital contribution of shareholders and decreasing investment.In the second section of this chapter, respectively discusses to perfect the appraisal right, and as well as the protection of the interests of the creditors.In conclusion, the emphasis and difficulty in writing is how to perfect the exercise of appraisal right,as for the discussion of "reasonable" definition and calculation time of buy-back price,establishment of buy-back process,making shareholders and company know each rights and obligations,establishment of mechanism of judicial discretion, and specification repurchase funding to ensure that shareholders interests and the interests of the company creditors could be both protected.The perfection of laws and regulations is the premise condition of one country, this paper focuses on the appraisal right and meantime approves some suggestion,hoping that our legislation is more practical,to make up for the defects in some degrees, strengthen the theoretical basis through the perfection of the repurchase price standard and fund sources.Meanwhile, Study on the issue of appraisal right could make the research of the Company Law of our country follow the international trend.At present, the United States, Japan and other countries have formed a more scientific and complete system on the issue of appraisal right, therefore, this essay aims to perfect the appraisal right on the basis of legislative experiences of foreign countries.