A Limited Liability Company Shareholders Right Of First Refusal Problem Research

Our country "company law" article 71 the provisions of the detailed and divides the equity transfer problem, but due to the objective of changing economic development situation, the personnel to recognize and resolve the dispute, and judicial practice, the influence of such factors as the difference in the judicial practice often appear different connection with the given phenomena, which not only don’t reason to steady and orderly development of the company but also not conducive to the set of judicial authority, so for a limited liability company shareholders right of first refusal dispute case carries on the discussion and research, than it is concluded that the feasibility unified concept of the referee is very necessary.The first part of this paper has chosen the author encountered in the case of typical cases in judicial practice, through the basic facts of case introduction, summarizes several typical problems often encountered in judicial practice, how to define the scope of \ "equal terms\" content, how to reasonably set a deadline for exercise, and the effectiveness of the equity of foreign transfer agreement, shareholders can only claim cancellation right, etc., and then combined with the theory, analysis of the current theory and practice about the above problems, put forward my own point of view.The second part the author emphatically analyzed about the definition of \ "equal terms\" is discussed, the author thinks that, for the definition of \ "equal terms\", says too much to protect the interests of the priority one absolute equivalent, may cause difficulties to transfer, will greatly damage the interests of the people the; Relatively equal say more realistic, but scale is larger, practice to operate is not easy to grasp. So for the cognizance of \ "equal terms\", besides considering the general \ "equal terms\" note also affect trading conditions set special cases.The third part discusses the problems of part of the exercise is preferential buy right, to claim the rights of the other shareholders as one, the author thinks that should not be allowed. Cannot afford to buy this case in the sun for all the transfer of equity, and for the purpose to block containing the Wu Mou transfer of shares shall not be allowed to claim part of its right of first refusal.Fourth part, the author discusses the issues of a period for exercising of priority right of shareholders, this problem has not been clearly stipulated in the company law, in our country, the author thinks that, in order to prevent dishonest shareholders abuse of right to damage the legitimate rights and interests of others, to urge the other shareholders to exercise their rights as soon as possible, to prevent the interests of all parties imbalances, must determine the exercise of the right of first refusal. Way for the parties in writing of the time limit to the convention, we should confirm its effectiveness, so the author thinks that the case in the sun is beyond the reasonable time of priority right of claim.The fifth part, a detailed analysis the author discusses the preemptive right of shareholders the influence of the external transfer of equity contract effectiveness, the author thinks that, to further analyze the shareholder’s right of first refusal shall determine the rights of nature, the author through the analysis of the examples of \ "property rights\", \ "said expectations right\" and \ "right of formation\", it is concluded that the shareholders right of first refusal should be understood as a stop conditions attached to the right of formation. To academic circles about the equity transfer contract to foreign at the same time the effectiveness of the proposed four representative theories are analyzed and evaluation, the author thinks that, in the judicial practice, the people’s court for transfer between shareholders and the third person of the equity transfer contract effectiveness problem should not treat as the same, shall, according to the specific circumstances to discriminate treatment: first, the third person of goodwill, priority, while for the transfer of the effectiveness of the contract does not affect, can only affect the actual performance of the contract. Contract can be according to the actual transfer of shareholders and the third person fulfillment situation(whether or not the actual performance, complete equity alteration registration) as a valid contract or to cancel the contract; Second, when the third person malicious, signed with the transfer shareholders equity foreign transfer agreement shall be considered invalid; Third, for in the trial practice of other shareholders only requires the exercise of its cancellation right, but I don’t clear claim to exercise the right of first refusal. The author thinks that, for these cases should not be allowed to enjoy the right of first refusal of shareholders exercise the cancellation right alone, and not according to the same conditions the transferee intends to transfer shares. So the sun to overturn and equity transfer agreement in case of action shall be supported.In conclusion, the author through the combing and discusses the difficulties encountered in the judicial practice work, in order to complete the shallow views on some questions.