The Effect Of The Equity Transfer Contract Which Infringes On The Preemptive Right Of Shareholders

On August 28,2017,the Supreme People's Court officially promulgated the judicial interpretation of the company law.The judicial interpretation(four)of the company law promulgated in 2017 has been more clear about the existing rules of the shareholders right of first refusal than before,like the content of the notice of transfer of equity?Applicable situations of the shareholders right of first refusal?exercise of the right of first refusal?the period for exercising the right of first refusal,damage relief and etc.In addition,the provisions of article 21 of the new judicial interpretation(four)does not support the advocation that confirming the transfer contract effectiveness without advocate preemptive right of shareholders.There is no clear rule about effectiveness of the equity transfer contract which infringe upon the priority right of shareholders(hereinafter referred to as the "equity transfer contract")At a time that the judicial interpretation(four)was promulgated,this article hopes to put forward my own views about the improvement of the judicial interpretation(four)on the basis of the existing regulations,in order to improve the company law and make a contribution to promote the development of the company law for the future,so as to improve the trade efficiency?maintain the market economic order?promote economic and social development.In terms of the structure of the article,this paper is divided into five parts.The first part gives an overview of shareholders' preemptive right.This part firstly expounds the institutional value of the shareholder's preemptive right from the people of the limited liability company,the "right to know" of the shareholders and the balance of the interests of the parties.After that,we will introduce the preemptive right of shareholders in our country.The second part analyzes the present situation of judicial practice in China by the way of empirical analysis.The existing law is based largely on the summary of historical experience,and the inner logic is one.Through the discovery of the court's mainstream practice in the judicial practice of the current equity transfer dispute,the author hopes to provide the rationality for the validity of the principle of the equity transfer contract and the invalidation of the exception.The third part mainly analyzes the effect of equity transfer contract.Domestic studies of the effectiveness of the equity transfer contract have many angle,like the system value of shareholders' preemptive right,the nature of shareholder's right of first refusal,contract effectiveness theory.The way of some studies to discuss the nature of equity property and the law is just like "walking on water".For those who believe in the form of substantive decision,an academic study that pays too much attention to the elaboration of legal norms.The innovation of this article lies in the analysis of the rationality that the equity transfer contract is considered effective in principle,invalid in exception from the prospective of the spirit of contract freedom and public power intervention and the origin of equity by the way of the value analysis,history analysis.In the long historical evolution,the formation and development of any kind of system follow certain laws.The effective utilization of these rules can strengthen the adaptability and rationality of a system under the new historical background.The fourth part of this paper carries on the semantic and logical analysis of the clauses of the judicial interpretation of the company law,and discusses the valid and invalid space of the principle of equity transfer contract in the existing system.Above all,the fifth part will put forward the corresponding improvement Suggestions on the shareholder preemptive right of company law.The perfect way is to supplement the existing provisions of the judicial interpretation(four)of the company law directly.The perfect content includes the explicit principle of the equity transfer contract,the exception and invalidity.Perfecting legislation is the key to guarantee the rights and interests of multiple parties in the judicial practice.