The Research On The Shareholder's Preemptive Right To Subscribe To New Shares

Preemptive right is an important right for shareholders.It plays an important role in protecting the property and controlled interests of shareholders in the company.The preemptive right arising from the company's financing process,it not only relates to the company's business development,but also plays a decisive role in cultivating the investment environment and the market order.Therefore,it is necessary to pay attention to it,and pay attention to the formation and development of the preemptive right system.However,current regulations of Corporate Law of the People's Republic of China(“Corporate Law of PRC”)on preemptive right are too general to solve the problems in practice.Therefore,through comparing the law of other countries and analyzing the core issues on the preemptive right,this article aims to provide suggestions on the construction of legal systems of preemptive rights.Specifically,the main body of this article is divided into four chapters,the main contents of each chapter are as follows:The first chapter is an overview of shareholder's preemptive right.First of all,starting from the basic concept of preemptive right,this paper explains the relationship between the abstract preemptive right and specific preemptive right.Compare the preemptive right to subscribe new shares with the priority purchase right in transfer shares in order to clarify the concept of preemptive rights.Secondly,this paper analyzes the purpose of the establishment of the preemptive right system.Thirdly,this paper compares the legal legislation on preemptive right in other countries to establish the foundation of analysis on extraterritorial law in the specific issues.The second chapter analyzes the exercise of preemptive right.Starting from the subject of preemptive right,this paper discusses the relevant provisions of preemptive right in limited liability companies and joint stock limited companies in China and analyzes the current legislative model for different types of companies in China.Besides,this paper discusses whether the class shareholders and the pawnees have the preemptive right.When excise the preemptive right,on the one hand,we should pay attention to the period of practice,on the other hand,we must set reasonable exercise price to balance the interests between shareholders and the company.This paper also analyzes the feasibility of assigning the preemptive right and considers whether the other shareholders can subscribe the new shares priority when shareholder transfer his preemptive right.Besides,research the issue when the shareholders abandon the preemptive right.The third chapter is a comparative study on the issue of excluding the preemptive rights in accordance with the other country's legislation.In special circumstances,the company issued its own new shares for special purpose.In order to ensure the realization of special purpose,it is necessary to restrict the preemptive right of the shareholders.The methods of exclusion mainly include statutory exclusion,exclusion through the form of the articles of association or the resolutions,and the way excludes the right in fact.Regardless of the methods of exclusion,the situations of exclusion include the issues for obtaining a specific property or consolidation,and the situation of issuing convertible bonds,treasury shares,and employee shares.In order to avoid improper damage to the interests of shareholders,the exclusion should meet the strict procedural and substantive process.Based on our country's law which lacking the legislation for the exclusion of preemptive rights,in reference to the relevant provisions of other countries,this paper proposes some rules on constructing the preemptive right for china.The forth Chapter summarizes the remedies for preemptive right in some countries,including the right of claiming on suspending the issuance of new shares in Japan and Korea,the right of litigation and the right of requiring the company or director to bear the damages.At the same time,combining with the judicial practice of China,this paper will discusses and analyzes the limitation of action and the deadline to exercise the preemptive.