Study Of Non-litigation Procedure Of The Appraisal Right

Under the existing judicial system in China, the case of the appraisal right should be applied to civil proceedings. But these cases are in fact, non-contentious ones, and commercial activities more emphasis on timeliness and rapidity, so there is rationality foundation for them to switch to non-litigation procedure. In comparison with the basis of legislative and judicial experience from foreign countries and Taiwan, China, Article tries to build non-litigation procedure for the appraisal right of dissenters in the basic of our country's legislative environment and Practice.The text is about thirty thousand words, is divided into four parts:The first part is an overview of the cases of the appraisal right of dissent shareholders in our country. This part defines the concept of the right first, because the litigation does not make a clear concept of the right that shareholders who disagree with the company's resolution may request the company to buy back its shares. Based on this, property of the cases of the appraisal right of dissent shareholders is discussed from the appraisal right being a type of formation right and determining the reasonable purchase price being non-lawsuit. On the one hand, the court shall take the initiative to intervene in order to ensure the realization of the right and achieving the connection between program and entity. On the other hand, the key of the cases without substantive disputes, is determining the reasonable purchase price. So the case of the appraisal right belongs to non-litigation event, and the court should hear the case with non-litigation procedure.The second part discusses legal basis and practical significance of the case applying to non-litigation procedure. The legal basis includes authority principle and written doctrine. Authority principle contains the ex official doctrine and authority doctrine. The court should examine elements of the substantive rights with the form of review standard under written doctrine. Non-litigation procedure could reduce the cost of shareholders, to help them to achieve their right soon. It could ensure company to return to normal operation as soon as possible, thus improving the efficiency of the company. It could also achieve the diversion of simplified cases and complicated ones, to improve the effective utilization of judicial resources.The third part is an Introduction and Commentary on judicial remedy of the appraisal right from foreign countries and Taiwan, China. To strengthen the authority, giving judges evidence rights and greater discretion, applying written doctrine and form examination, reducing of the standard of proof, using the method of weighted mean to calculate the stock price are worth learning.The forth part is to explore how to build non-litigation procedure of the case of appraisal right. Combined with the oversea related experience, legislation and the judicial status in our country, the construction should be described with four aspects. First of all, the law should entrust the objection of shareholders and the company the legitimate right to a hearing, and make assistant obligations to the shareholders and the company clear. Second, it is necessary to simplify the review process and establish the form of review standard. In addition, different types of companies apply to different methods of determining the reasonable price of the purchase price, the starting point of interest calculation and the legal effect of the assessment report should be clear. Finally, the regional jurisdiction should be determined according to the characteristics of the case, and payment for procedural costs and non-procedural costs should be determined based on the results of the referee and the principle of equity.