Research On The Pre-Emptive Right Of Shareholders In The Limited Liability Company

Since 1892, a limited liability company was born in Germany, it is known as the law of man and property in one. And, based on this special property, the law needs to be balanced between the people and the capital, not only to maintain the unity of the people, but also to ensure that shareholders in the transfer of equity to be able to successfully withdraw from the company.Therefore, as one of the share transfer restrictions, pre-emptive rights of shareholders must balance the interests of both sides on the basis of. In China, for this system, although generally in accordance with this theme, but not enough rigorous requirements.Generally speaking, pre-emptive rights of shareholders, is based on the Companies Act or the provisions of the relevant agreements, in the transfer of ownership of foreign shareholders, other shareholders may enjoy priority to purchase equity in the system under the same conditions to other third party. Because of the limited liability company of co-existence, and its equity shares of the company’s equity is not as strong liquidity, China’s "Company Law" provisions of Article 72 of the system is only a matter of principle and guidance in existing company law system, these provisions appear to shareholders in the share transfer process of problem and can not be better to provide detailed legal guidance, so that the judge in the trial of the relevant issues and theoretical understanding of applicable statute is inconsistent, leading to shareholders priority purchase rights decision in the case is different. Therefore, this article tries to combine cases involving shareholders’pre-emptive rights, the provisions of Article 72 of the "Company Law" into a detailed study in order to make recommendations for further improvement of the system of pre-emptive rights of shareholders.This article is divided into four parts discussions. The first part describes the purpose and significance of the research, research status and research methods and scope. In the second part of the shareholders’ pre-emptive rights are outlined, as the basis for the key part discussed below, defines the concept of pre-emptive rights of shareholders, and to focus on its properties. Finally, analysis of the legal basis of shareholders’ pre-emptive rights system and that the system is the special nature of a limited liability company of the Companies Act provisions exist, and focus on the protection of limited liability company co-stabilizing and order, taking into account the balance of the parties interest. The third part is the key chapter of this paper, combined with pre-emptive rights of existing shareholders of the relevant case analysis of the problem, exercise range from "equal conditions" to determine the shareholders pre-emption, the shareholders preemptive rights exercise period under the enforceable equity transfer these four aspects of the analysis, combined with the relevant jurisprudence, the focus of controversy for its presence in-depth analysis and recommendations. The fourth part is to improve the system of pre-emptive rights of shareholders, highlighted the need to respect the principle of autonomy to bring the convenience of the company, followed by the pre-emptive rights of shareholders to deal with the reconstruction system, refining the content from "equal conditions", the provisions of the right of first refusal exercise period, auction improve equity, to construct pre-emptive rights of shareholders to exercise accountability mechanism, it is to better improvethe institutional framework "Company Law".