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Research On The Legal Effect Of The Preemptive Right Of Shareholders

Posted on:2018-06-27Degree:MasterType:Thesis
Country:ChinaCandidate:S M ChenFull Text:PDF
GTID:2336330518452465Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The preemptive right of shareholders as a special legal priority.To protect the personality in limited liability company,confine shareholder's freedom of transfer the shares.The shareholder's preemptive right disputes often cause sentence dilemma.The author comb related cases from the internal effect and external effect.The internal validity disputes mainly include two aspects.For one thing,once the other shareholders claim the right,whether the equity transfer contract can be formed directly with the transfer of shareholders.For another,if the contract that between the transfer of shareholders and the third person was revoked by the court or was terminated.Whether the other shareholders can claim the right.The external effect disputes also include two aspects.For one thing,if the transfer of shareholders violate the provisions of the company law or the articles of association.whether the contract that between the transfer of shareholders and the third person is valid.For another,if third people have been recorded on the register of shareholders,whether the other shareholders can claim the preemptive right.It is difficult to make unified judgments.Because the legislation is not perfect.It is the right solution that make the judicial interpretation to make up the relevant system.It is possible to make a judicial interpretation can properly solve disputes.The nature of equity and equity mode is the key to solve the problem of the preemptive right of the shareholders.The research from the nature of equity.The equity is the unity of individual rights and group rights.The equity includes property and control rights.The nature of equity decides the equity mode.From the standard and theory aspects analysis the equity mode.There are some problems in the formalism of equity change and the mode of pure doctrine.The author thinks that it is a reasonable choice that the other shareholders agree and give up the preemption as the model of the amendment of the effective elements of the equity change.On basis,the author analyses shareholder's preemption effect from norms and theoretical.The internal validity include two aspects.For one thing,once the other shareholders claim the right,the equity transfer contract can be formed directly with the transfer of shareholders.For another,if the contract that between the transfer of shareholders and the third person is revoked by the court or be terminated.The other shareholders can claim the right.The External effect include two aspects.For one thing,if the transfer of shareholders violate the provisions of the company law or the articles of association.In principle,the contract that between the transfer of shareholders and the third person is valid.For another,if third people have been recorded on the register of shareholders,the other shareholders can claim the preemptive right.Finally,the author summarize the internal effect and external effect of preemptive right of shareholders.And the author analyze and introspect(the"company law" judicial interpretation four)provisions.The author put forward proposals and hope to provide a reference for judicial.
Keywords/Search Tags:Preemptive right of shareholders, Internal effect, External effect
PDF Full Text Request
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