The Analysis About Shareholders' Preemptive Right Of Qu V.Ding

In the judicial practice,the equity transfer disputes accounted for the largest proportion in the company-related disputes.The most controversial type is the disputes of exercise or violating the shareholders' preemptive right.In terms of this,it's of practical value to study the shareholders' preemptive right.Shareholders'preemptive right is a guarantee of the rights granted to shareholders of a limited liability company as well as a burden of equity.Article 71 of the Company Law of the People's Republic of China has designed four provisions to stipulate the operation of the equity transfer and the third paragraph is the relevant provisions of the shareholders' preemptive right.As the provisions are quite abstract,the exercise of the shareholders' preemptive right leads to lots of controversies and doubts in complex equity transfer disputes.Qu v.Ding and other shareholders preferred right of the dispute is a typical case of equity transfer involved in the case of shareholders'preemptive rights dispute case.The case has three points of dispute as follows:(1)Qu can form a shareholder preemptive rights on September 10 or not;(2)Qu claims whether the conditions of purchase of shares to determine is "the same conditions";(3)How to determine the effect of the equity transfer agreement between Ding and other non-shareholders.After the first instance,the second instance,retrial,the final review of the Supreme People's Court revoked the second instance verdict and maintain the results of the first instance verdict.On the basis of analyzing the case,the thesis made the normative and theoretical analysis on the nature of the shareholders' preemptive right,the identity of the precondition of "the same conditions" in the shareholders' preemptive right and the effect of the transfer agreement between the transfer shareholder and the the non-shareholder respectively.According to the research of the jurisprudence of same type,we can conclude that:(1)During the shareholders meeting on Sep 10,there is no clear transferee and can not reach a certain condition for the transfer of content agreed,so Qu can not form a preemptive right on September 10;(2)The determination of the"equivalent conditions" of other shareholders to exercise the right of preemptive shall be determined synthetically by comprehensive equity transfer price,payment method and liability for breach of contract.(3)The validity of the equity transfer agreement for non-infringement of shareholder's right of first installment shall be determined in accordance with the terms of reference of the contract in the Contract Law.The equity transfer agreement signed by the three parties with the non-shareholder transferee does not infringe upon the priority of the other shareholders and is in accordance with the entry into force of the Contract Law,so it's effective.