Research On Judicial Determination Of Preemptive Right Of Shareholders In Indirect Acquisition

As a special organization form,a limited liability company has the characteristics of “The integration of human and capital” making it different from a partnership enterprise.It has certain positive significance for the control of risk.But this characteristic also gives judicial practice a difficulty to the application of the right of preemption in the transfer of equity and the identification of how to apply it.With the development of economy and society,the structure of equity trading is becoming more and more complex,the impact of the company law is also increasing step by step,new type of equity trading disputes are constantly emerging in practice,but the traditional theory of shareholder preemption only stays on the basic attribute level.The complex transaction structure has raised higher requirements for the identification of the right of preemption,especially when it is higher than the direct shareholder level,whether the parent company or even the actual controller level applies preemptive right has become a difficult problem identified in judicial practice.The main three aspects of this paper are the study of the right of preemption reflected in the Most Expensive Land of Shanghai Bund.First,clarifying the facts of the case and the basis of judicial determination by analyzing the Most Expensive Land of Shanghai Bund,therefore it points out the problems of judicial determination in the case that the error of the right of preemptive right is defined as the right of conditional formation to apply it to the level of indirect purchase.Secondly,it think the limited liability company as“The integration of human and capital”by analyzing the problems in the judicial cognizance described in the first part,meanwhile prioritize the right of purchase as a right of expectation based on shareholder identity,the right of preemption only exists between the direct shareholders of the company and cannot be penetrated to the indirect purchase unless specifically agreed between the articles of association or the shareholders.Finally,exploring the cause of the problem that improper application of legal interpretation methods and ambiguity of legal regulations based on the analysis of the problems existing in judicial determination in the second part.Finally,it proposed how to improve preemptive right system.