The Study On The Legal Problems Of Shareholder's Preemption Right Under The Mode Of Indirect Acquisition

As an important modern enterprise system,the company system has made outstanding contributions to the vigorous development of the national economy after being introduced into China.Therefore,there is no doubt that the company's system is not only related to the improvement of the company's own business and development,but also related to the economic and social harmony and stability.One of the most important chains in the company system is the equity system,which can not only play a role in maintaining the company's human nature and balancing the interests of shareholders inside,but also can play a free share of capital rights and interests outside.But when the two important values,which are the cohesion of the limited company and the external freedom of ownership,behind the equity system need being protected,when they conflict with each other,where there are no legal rules to be clearly defined,the legislator or the judge need to decide which one should be protected firstly.In the "Shanghai Bund to the king case",the judges are faced with the above problems,SOHO Chinese companies acquire two shareholders of the project company,which enable them to indirectly own half of the equity interest of the project company's.Fosun company,as a direct one of the shareholders,claims that its shareholders preferred right to purchase has been violated,and thus resorts to the law,participated in the equity transactions of the parties are accused to the court.Because the parties involved in the real estate sector are important corporate entities,and the way to resolve the case of the dispute will become guidance to the similar case in the future,so the case attracts a great deal of concern.The Court of First Instance of the case finally supported the plaintiff's claim.The court ensure that Fosun's shareholders' preferred right to purchase has been violated,the equity trading contract between defendants is in the legal form to cover illegal purposes under the "Contract Law".The contract shall be invalid.The view of the judgment actually determines that the transaction pattern of the indirect acquisition constitutes a violation of the priority purchase rights of the shareholders of the target company.That is to say,the scope of the shareholder's right of first refusal can be used to breakthrough the application of the same level of shareholders,the level of the indirect equity transferee.This paper does not agree with the judgment of the court of first instance,and thinks that in the case of the shareholders' priority purchase right and the indirect acquisition,the author support that in the case of the new legal issue drawn from the Shanghai Bund,that is,whether the indirect acquisition behavior should be regarded as violating the shareholder's right of first refusal Commercial trade model of interest measurement,should be more inclined to protect the indirect acquisition of the commercial transaction model,rather than the shareholders of the right of first refusal.The court as a neutral judge should pay more attention to respect for the form of commercial transactions,and shareholders of the human needs can be set by the corresponding special terms to achieve the contract.The basic content of this paper is as follows:The first part of the article show the "Shanghai Bund to the king" equity transfer dispute case,which reviews the basic case,the court's decision to sort out controversial focus of the case,and then gives a simple analysis,and the paper will in-depth explore the legal issue,that is,whether the acquisition of indirect equity infringe other shareholders of the right of first refusal of the target company.And from the basic case and the focus of controversy,there leads to the view that the indirect acquisition in this case should not be identified as violations of shareholders priority purchase rights of Fosun company.The second part of the article to prove that " in the indirect acquisition behavior should not be considered as a reason to infringe the shareholders of the right of first refusal in detail in the "Shanghai Bund to the king case".This paper analyzes and demonstrates it from four perspectives: Firstly,from the perspective of legal interpretation.That the Court of First Instance in the absence of relevant legal provisions or judicial interpretation of a direct reference,the use of the expansion of article 71 of the provisions of the preferred right to buy the right to expand the scope of the application the "Company Law" is unreasonable,which is beyond the legal scope of the culverts;secondly,from the perspective of institutional value.In this paper,the limited company is more concerned about the bond ability rather thanhuman nature,which should not be too much emphasis.And the company as an organizational form,one of its unique advantages is that it can transfer the company to transfer the name of the property,as well as the contractual rights and interests of the company's commercial advantage of its inherent economic value,which should be respected;Thirdly,from the perspective of transaction costs in law economics,in this paper,if the value of the choice of priority to the protection of shareholders as a priority choice,that is to say,in the equity acquisition as long as the acquisition process involves the target company equity rights such as change the actual controller,the company has to inquire whether they execute the shareholders preemptive rights in advance.There is no doubt that the liquidity of the shares will be limited,and it will greatly increase the cost of M & A transactions;and fourthly,from the perspective of judicial practice,it is necessary to consult the other shareholders of the target company and ask whether or not to exercise the shareholder's right of first refusal.The Supreme People's Court also supports similar cases in similar equity disputes,which explain that judges should be more in line with the formal requirements of the equity transfer for narrow interpretation.Finally,based on the theoretical analysis,the third part of this paper attempts to put forward some suggestions on the perfection of the legislation: the establishment of the designated third party purchase system,change the shareholder's right of first refusal of the legislative model,clear the priority of the exercise of shareholders during the exercise and Institutional design to meet the needs of shareholders.