Research On The Legal System Of Shareholders' Preemptive Rights In Limited Liability Companies

As an old legal system,preemptive right not only plays an important role in maintaining the public order and good morals in agricultural society,in market economy,but also plays a stabilizing role in maintaining the legal and economic relations between shareholders of a limited liability company which has the character of collaboration,capital integrity and closeness.How to effectively protect their interests,the personality in company,to make up for the shortage of share transfer consent system,to reduce transaction costs of equity transfer and to stimulate the subjective initiative of shareholders? The company law especially proposed to give other shareholders preemptive right.But it only makes general provisions on the application rules of the preemptive right in the equity transfer and compulsory execution of the limited liability company,no details.According to the Company Law,except for articles of association,the judicial remedies for the violation of the preemptive right of other shareholders are mainly accomplished by the litigation decision of the court.Therefore,the company law revised in 2005 learned from foreign advanced legislative experience and perfected the shareholder preemption system in old company law.Since then,the litigation in the judicial trial is controversial.First of all,the introduction of the article is divided into three parts.The first part discusses the research background and significance of priority right of shareholders,the shareholders preemptive right in the present theory and practice of the applicable conditions,to explore the contents of this article;Second,the literature review section.Through reading and analyzing different books and papers at home and abroad about the main research contents of priority right of shareholders,to form a general understanding of the system.The second chapter,it is on the basic theory of priority right of shareholders.First,clearing the constitutive requirements of the system,and then through the analysis clearing that is the right of formation and expectant right.Finally,on the legislative value of the system,this paper made clear the key of the system is for maintaining the company's cohesion.The third chapter,by discussing the present situation of the shareholders' preemptive right system in China,leads to the most important questions.Except for the right of first refusal in the company law,also extended to discuss the Civil Law and the Property law on pre-emption rights.And at the same time,the paper clears that in the perfecting of priority right of shareholders should pay attention to the coordination with the relevant rules in order to improve the universality in the judicial practice.On the basis of the above problems,the article in the fourth chapter analyzed the outside shareholder's preemptive right system respectively from two angles of continental law system and Anglo-American law system,and enumerates the France,Germany,the United States,Britain and other countries,the relevant system,and try to get worthy of reference.The fifth chapter,combining the above discussion,the author tries to improve the system of shareholders' right of first refusal and puts forward some advice.In combination with the judicial interpretation four(draft),25,26,27,and 29 provisions of shareholder's right of first refusal,the author tried to give notice from these aspects below.Such as the equal conditions,the situations that the shareholders give up the transfer,damage of the effectiveness of the contract,and how to improve the shareholders' right of first refusal in the articles of association.From several aspects the author tries to improve the system.