Research On Legal System Establishment Of Share Repurchase Of Limited Liability Company In Our Country

Nowadays,our country has launched a few commercial separate regulations,but some of the basic principles and the institutional rules of commercial law system are still not clear.The regulations for the share repurchase of our country are still relatively undefined,and the legal protection for shareholders in accordance with the Article 74 of Company Law of our country places three situations which under certain conditions shareholders of the company can exercise the right of claim against company for repurchase the share.However,in addition to the situation that is above mentioned,whether the agreement about share repurchase between company and shareholders is effective in the judicial practice is wavering.The positive opinions state that what is not prohibited by laws is permitted,while the negative opinions state that share repurchase based on agreement is invalid because of the violation of the principle of company capital maintenance.From the point of the judicial practice,the only method to solve the conflict in application of law is the establishment of the system of share repurchase.Consider from the policy development of our country has given the freedom to the economic subject in business activities,the economic subject needs to carry out business activities under legal control,therefore,building system of share repurchase is urgent and necessary.In recent years,some countries such as America,Japan,Germany gradually recognize the effectiveness of the share repurchase agreements and formed the “principles allowed,and the exceptions forbidden” principle for the share repurchase of limited liability companies.In this thesis,in the view of China's national conditions and reality with reference of foreign law system,I tried to study and inspire the establishment of the limited liability company share repurchase procedure before,through,and after repurchase,and tried to inspire the establishment of the legal liabilities of the illegal repurchase in China.The structure of this thesis which is about the research of limited liability company share repurchase system is mainly consisting of the following four chapters whose main content is as follows:The first chapter of this thesis defined the share repurchase,and in order to make clear of the focus of this thesis,I compare the definition of share repurchase with the similar definitions the repurchase rights for dissent shareholders in Company Law of our country.Besides,I did the empirical researches on the share repurchase disputes of limited liability companies in China to classify the judicial decisions to the effectiveness of the share repurchase based on agreements,and tried to inspire the establishment of the legal system of stock repurchase in China.The second chapter of this thesis contains classification results of the empirical research in the previous chapter and the in-depth study of the result of such empirical research.In this chapter,I made the analysis of the cause of the differences of the result of the judgment,and found that the lack of legislation of limited liability company share repurchase based on agreement makes it difficult to decide whether it is legal or illegal to make such agreement under the current legal system.So,I researched and analyzed the relevant regulations of Hong Kong,the United States,Japan,Germany,and combined the research result with the national condition of our country,tried to inspire the establishment of the legal system of stock repurchase of our country.The third chapter mainly discusses the necessity and appropriateness for research the establishment of the legal system of limited liability company share repurchase in our country.To analyze the necessity of the establishment of the legal system of limited liability company share repurchase in our country,I demonstrated from the requirement of the right of freedom of business of the economic subject,and the limitations of the stock repurchase under the Article 74 of the Company Law of China.To analyze the appropriateness of the establishment of the legal system of limited liability company share repurchase in our country,I demonstrated from that share repurchase don't damage the interest of other shareholders,and share repurchase doesn't conflict with the principle of law,and share repurchase doesn't cause the mixture of the subject of company and the subject of shareholder.The fourth chapter mainly discusses the improvement of the system of share repurchase,which includes the construction of substantial and procedural legal system of share repurchase.Firstly,unified the procedural and substantial provisions related to the share repurchase,which includes but not limited to the policies,regulations,laws,notices,announcements,and unified the principles of civil law and commercial law system.Secondly,establish and optimize the share repurchase system which includes optimizing the procedure of share repurchase,the construction of disclosure procedures,which includes the disclose of the repurchase program,the shareholder rights to be frozen temporarily after repurchase,specify the interval time between two repurchase.Finally,I tried to set the legal liabilities needed to take when the illegal repurchase happens.