Study On The Appraisal Rights Of Dissenters In Judicial Application

The system on a dissent shareholder's right of claim for buy back is a method of relieving medium and small shareholders,making up the defects of capital majority decision and balancing interests among shareholders,all of which indicate selfevident importance of the system.However,the system still has many defects according to analysis on current legislation and judiciary of China,such as unclear subject qualifications,narrow scope of application,difficulty of determining a reasonable price for buy back,and non-synchronous regulations between limited liability companies and joint stock companies,resulting in its weak operability and difficulty of playing the value function of the system.This paper tried to analyze related cases in judicial practice,aiming to find out specific barriers of application and propose corresponding opinions for making improvement.Except for introduction and conclusion,this paper is divided into five parts:The first part is the basis for this paper to propose problems.By screening and statistics of online cases of judgment documents,it analyzed the current judicial application and controversial points in current judicial application.Then,it summarized problems of three aspects under high controversy via analysis: unclear certification of subject qualifications,too narrow situations of application and difficulty of determining a reasonable price.The second part is concerned about theoretical analysis of the system,which is regarded as the theoretical foundation for analyzing the following three parts.It mainly introduced birth and development,theoretical foundation and value functions of the system.The third part analyzed the first controversial point.After introducing the regulations of China on general subjects,it combined related cases with views of theoretical scholars to analyze whether the right is available by a shareholder with defects of contribution,a shareholder without voting power,a derivative shareholder and a shareholder who is absent from the board of shareholders or not in practice.Finally,it proposed improved legislation views.The fourth part analyzed the second controversial point,which is the most controversial point in practice and also the focus of this paper.After analyzing current legislation and judiciary of China,it proposed opinions for improving current causesand expand application causes on the basis of referring to legislation of related foreign countries or regions.The last part is determining a reasonable price for a dissent shareholder's right of claim for buy back.This paper analyzed the third controversial point.Targeted at unclear connotations of “a reasonable price” as a legislation defect and absence of judiciary pricing mechanism,it cleared up benchmarking date of assessment,assessment method,assessment fee and burden of proof in assessment with criteria of assessment as the entry point,based on an assessment mechanism can be structured for a reasonable price.