The Application And Perfection Of The Shareholder’s Preemptive Right Of The Limited Liability Company

With the continuous development of the market economic,large limited liability companies now present more intricate relationships among its people and capitals.Company is the collection of a whole set of contracts,Shareholders of capital contribution form between property right structure more embodies the management of a corporation and properties,geared to protect company’s "people’s connection" is no longer the purpose of the lawmakers.Legislators gradually turned to protect the "equity transaction" itself — the nature of the market trading activities,which is also a the basic function of a company,acting as a contractual entity,to transaction and maximize revenue,which is seemed as a contract entity.The discussion of shareholder’s preemptive right of the limited liability company is mainly based on the written statutes as a prerequisite.One discussion is based on combination of the preemptive right in civil law theory and the basic theory of company.Another is discussed from the "people’s connection",combining the basic theory of legal person for analysis.Among them there were very few discussed from the perspective of the nature of the company to explore sources of the preemptive right.When discussing this traditional topic,the author started from the company’s contractual theory and used the economic analysis of law as the tool,trying to adopt a new perspective to observe and analyze the essence of the preemptive right,in order to provide new ideas to resolve equity disputes of companies in judicial practice.The innovation of this article lies in the company of the contract theory of the firm reinforce concrete system,combining the law theory and the economics of law.Nature of the preemptive right of shareholders is the key point of this article.The author analyzed the classification of the right of preemption involved in each part of the equity transfer process and concluded that it should fall into the category of the expectant right.Finally,in the process of applying law,there are still many details to be discussed in the rights of shareholders.The Supreme People’s Court on Publicly Soliciting Comments from the Society on the judicial interpretations of Company Act(Referred as Draft on comments)stipulated the specific contents of the “identical term”,also established that the shareholders can no longer exercise the preemptive right with only part of the stock equity;in the final decision of Draft on comments,violations of the preemptive right of those contracts are deemed as invalid on the question of the validity of the equity transfer contract.The author compared the different cost analysis under different contract effectiveness,and pointed out that in the situation of “avoidance of contract” many costs will be minimized,therefore the author supported the point of view of Draft on comments.In the end,the author put forward Term Auction Facility in the process of forming a contract as an improving measure to match the same condition,and demonstrated its necessity and feasibility.