The Analysis Of Shareholders' Preemptive Right In Limited Liability Comparnies

For maintaining the character of shareholders' collaboration of limited liability companies,shareholders'preemptive right was created by the law,which is a kind of supporting system for the restriction on external share transfer carried out by shareholders of limited liability companies.The system based on the preemptive rights of civil law in continental law system,can protected other shareholders' interests and sustained stabilization of limited liability companies when external share transfer.The 71st and 72nd article of Company Law of 2005 developed on the basic of the 35th article of Company Law of 1993 and made good progress.I explored the regulations of the Company Law of 2005 deeply,and founded that though the change showed a progress,the article is still general to lead confusion in theory and practice.I also will analyze the regulations of the judicial interpretation four in every chapter.Expect the parts of introduction and conclusion,the thesis is divided into three chapters to discuss the reason for the system,the nature of the system and the analysis of the 71st and 72nd article:Chapter One analyses the reasons and importance of the system:the difference between the nature of limited-liability company and that of incorporated company,the nature of stock right,and the organizational form of limited liability companies.Chapter Two introduces the main viewpoints on the nature of shareholders'preemptive right in academic area.Currently,there exist the theories of "expectant right","right of claim","conditional right of formation",and "right of formation" etc.I agree with"right of formation".The judicial interpretation four supports the right of rescission which means disagreeing with "right of formation" though I support the point.Chapter Three to Six analyzes the content of the 71st and 72nd article in detail from these aspects as follows:shareholders' informed consent,how to determine the standard of"equal condition",how to exercise the preemptive right in execution proceedings,and the meaning of the autonomy of company charter,etc.Chapter Seven introduces relief ways in malicious shareholders' preemptive right.Shareholders' preemptive right shows the value of system that the law maintains every party's balance and keeps the fairness when facing conflict.The defects of regulation of shareholders' preemptive right 'are pointed out during the progress of practices and development of theory,and need to be improved in the progress of legislation and judicature.The constant revision of company law and the newly setting judicial interpretation four shows the development of legislative technique and idea.The company law is more and more perfectly suit the role it should plays in market economy by lawmakers and other parties' constant effort.