Research On Legal Issues Of Shareholder's Right Of Preemption

On December 5,2016,the Supreme People's Court passed the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(4)." With the promulgation of "The Judicial Interpretation of Corporate Law(4)",some disputes have been conclusive in theoretical and practical circles.Judicial practice has a clearer basis for judgment.The significance of formulating a judicial interpretation is to make up for the deficiencies and deficiencies of the relevant system.Only by comprehensively reviewing the issues concerning the legal validity of shareholders' preemptive rights,can a judicial interpretation that can properly settle disputes be formulated.However,even if it is passed through judicial interpretation,as a special legal priority,there are still some problems that need to be studied.The procedures and remedies for their rights and rights should also be stipulated in detail by law.Most of the company disputes are equity transfer disputes,of which the most controversial is the dispute over the right of first refusal.This article is divided into four chapters to analyze and research on the system of preemptive rights.The first chapter focuses on the characterization of preemptive rights.The first chapter elaborates its qualitative basis and academic viewpoints through two aspects:concept and nature.For a long time,the theoretical community has different views and opinions on the nature of the pre-acquisition right.The types of corporate disputes are more and more frequent.The issue of pre-emptive rights is also disputed by legal professionals,and is considered to be one of the problems in the equity transfer system.Article 71 and Article 72 of the "Company Law" stipulate the shareholders' right of first refusal.Article 71 stipulates that subjective intent of shareholders,transfer occurs in the meaning of shareholders,and on the basis of freedom,this is the most common in actual transactions;Article 72 stipulates that the transfer of shares to foreign shareholders is not voluntary,but the court is in force.Based on the results of changes in equity,other shareholders can still rank in front of other bidders and buy passive transfer of equity.The second chapter mainly studies the exercise of the preemption right from the basis for the exercise of the preemptive right,the scope of the exercising entity,shareholders' right of preemption is elaborated from the perspective of the theoretical circle,from the statutory basis and the principled basis.According to Article 71,paragraph 3 of the "Company Law," the subject scope refers to "other shareholders." In other words,the subject of the right is limited to "other shareholders".In addition,the shareholder's shareholder assignment is the scope of the main body,and the special shareholder is the basis for correct support and establishment.Since China's "Company Law" sets two conditions for the exercise of the right of first refusal,one is the transfer of equity through the shareholders' consent,and the other is that if the shareholders transferring the shares want to buy,the purchase conditions must be the same as the third party to the transferee's shareholders..The third chapter mainly studies the legal effect of the preemptive right.Its internal effectiveness,before the introduction of the "Judicial Interpretation of Company Law IV”,the legal nature of the preemptive right was recognized as the forming right in the mainstream doctrine.Because the quality of the shareholders' preemptive right determines the agreement between the rights holder and the transferring shareholder.The most direct influence of the shareholders' right of pre-emption is to purchase the rights between the shareholders under the premise of meeting certain conditions,and formulate and verify the criteria of the transfer contract in the previous contract.After the introduction of "The Judicial Interpretation of Company Law ?",the legal nature of the preemptive right is no longer controversial.According to the provisions of the judicial interpretation,it is clear that the legislator recognizes it as the right to request.In terms of external effectiveness,the shareholders and the third party signed the previous equity transfer contract to obtain the end-use equity,but the ownership of the equity is unique.The external effectiveness of the shareholder's right of first refusal is the influence of the legal relationship between the shareholder's right to first purchase and the company's third party.The fourth chapter mainly studies how to protect their legitimate rights and interests from the perspective of transferring shareholders and priority shareholders.Among them,for the transfer of shareholders,the author believes that relief can be achieved by increasing the chances of negotiating transfer of shareholder contracts,expanding the practical necessity of transferring the remedy paths of shareholders,and establishing the justification of transferee shareholders' revocation rights;and for the preferential shareholders,it can be established through "Relief and protection of general infringement acts",explicit preferential right-for-claims relief rules for granting equity to the outside world,ensuring plaintiffs litigation status for priority shareholders,and determining the remedy channels for priority shareholders at different stages,etc.