Research On Shareholder’s Preemptive Right Of A Limited Liability Company

The system of shareholder’s preemptiom in company law is an important system.How to take scientific and reasonable system design to balance the relationships between freedom of disposition of equity and the interests of other co-shareholders, to provide a smooth exit mechanism without destroying the co-resistance of limited liability company, to ensure the stable operation of the company, is an important issue which each contry are trying to study.Shareholders’ preemptive right involved in many issues. There are a lot of disputes in theory and practice.This article attempts to make comprehensive analysis and research involved in the preemptive right of shareholders, to propose my own opinions so as to provide a reference for theoretical research and practical operation of preemptive right of shareholders of a limited liability company.This paper expands the study of preemptive rights of shareholders of a limited liability company according to the value of the function of the system, the nature and validity of the right, the establishment and exercise of the right, the violations and remedies of the right.Company law establishes a shareholder’s preemption system to protect the company and its other shareholders and other co-benefits, sets certain restrictions on their freedom of disposition of equity without prejudice the legitimate interests of the shareholders.The shareholder’s preemptive right is a right which shows the role of equity.It has has two effects: one is establishing an equity transfer contract between the preemptive right holder and the equity transferor, the other is eliminating the equity transfer contract effect between the third party and the equity transferor.The establishment of shareholder’s preemptive right have two necessary elements: one is the equity basement the other is the equity transfer contract between the equity transferor and the transferee. The Equal Condition is not the necessary element of shareholder’s preemptive right. And a shareholder can have the shareholder’s preemptive right without the Accepting Procedural. The exercise of shareholder’s preemptive right has two restrictions like other forming rights: one is the the exercise period and the other is performance security.The shareholder’s preemptive right can be an object of tort. But for the relative party only has the obligation to not hindering the rights and the effect, so the infringement of shareholder’s preemptive right exercising behavior is limited to actively discourage rights, not including performing the notification of equity transfer. There are two different remedy measures to protect the shareholder’s preemptive right. If the violation do not make the right eliminating by exercising period, infringer has the liability to stop the infringement, remove obstacles, let right be exercised, in otherwise shall have the liability to pay compensation. In addition, it is also infringe the shareholder’s preemptive right to use the contract to excludes the right which shall assume the tort liability. In the case of Shanghai’s highest bidding for the land of The Bond, the defendant uses a special method to exclude the shareholder’s preemptive right. The first intermediate court of Shanghai hear the case.It rules the equity transfer contract between the six parties is invalid for using legal ways to cover up the illegal purpose which is the one rule to handle this type of case and the other is assuming tort liability.