The Research On The Legal Institutions Of Dissenting Shareholders' Appraisal Right

The Appraisal Right of Dissenters is an effective remedy when the majority consent voting mechanism is abused.When shareholders of the company(the General Meeting)make some particular changes corresponding to the significant changes,such as mergers and acquisitions,sales of significant assets,the modification of the articles of association,those minority shareholders who hold the objective view may be forced to accept the above-mentioned company's acquisition.The system provides those dissenting shareholders with the current stock holding reasonable compensation to the way out of the company.On the one hand,it may protect the interests of small shareholders,reflect the principle of substantive fairness,on the other hand,the company may make decisions to meet the principle of market efficiency in accordance with the majority of shareholders.As early as in 1927,the United States enacted the law on dissenting shareholders' share repurchase request,and made detailed provisions in triggering the case,application,exercise procedures and so on.China established this system by the form of law for the first time in the revision of the Company Law in 2005,however,since the system is too vague and the maneuverability is not strong,it still faces a lot of problems in the legislation and practice.From the legislation point of view,the Company Law of China does not clearly defined what the shareholders should do to request the company to repurchase their shares,the standard of reasonable price when the shares are repurchased,and whether applicable restrictive terms exits.From the practice point of view,there are still some problems in the actual operation of the repurchase right system of dissenting shareholders in our country.First of all,it lacks operationally reasonable triggers,such as "five consecutive years of non-distribution of profits",which not only requires the company to profit for five consecutive years and to achieve the conditions for distribution of profits,but also requires the company for five consecutive years not to distribute profits,which can be easily avoid in the judicial practice and make the minority shareholders' right become a dead letter.Second,the diversification of the subject exits in practice,such as throughout the company's business process,there are often not only exists those shareholders who have been registered,but also exits the hidden shareholders,following the shareholders,non-voting shareholders and so on arising from some other reasons,and whether such special subject can be actually appliedto the dissenting shareholder of the shares repurchase request the right in the company's operating process still need to be resolved.On the basis of fully analyzing and drawing lessons from American experience in the legislative and judicial aspects of dissenting shareholder's share repurchase request system,this paper analyzes the advantages of the dissenting shareholder's repurchase right,which is based on the protection of minority shareholder's rights and interests,The following three aspects to improve the dissenting shareholders of the shares repurchase request system of the path.First,clarify the relevant provisions of the cause of the trigger,"five consecutive years of undistributed profits","main property" and other definitive explanations,add other trigger events,such as asset restructuring,the main asset mortgage and pledge.The second is to expand the scope of the applicable subject,the implicit shareholders,the following shareholders,funded flawed shareholders and non-voting shareholders in line with special conditions,the scope of the body into the exercise of the system.Third,improve the system of the exercise of procedures,clear dissent shareholders and the company during the exercise of the rights and obligations to develop a reasonable price of repurchase equity standards,increase in the two sides failed to negotiate the relevant provisions of the proceedings.