The Study On Shareholders' Preemptive Right Of Limited Liability Companies

The equity transfer dispute caused by the shareholder's preemptive right has become one of the important types of company law cases in China.No.4 Judicial Interpretation of Company Law issued in 2017 further refined and improved the rules for the exercise of shareholders' preemptive right.However,the internal logical problems and contradictions in the exercise rules of shareholders' preemptive right in China are still unresolved,which requires in-depth analysis of the system itself to seek reasonable solutions.From the perspective of No.4 Judicial Interpretation of Company Law,this paper takes shareholders' preemptive right as the study object.In addition to the introduction and conclusion,the basic content includes the following five chapters.Chapter One elaborates the theoretical basis of shareholders' preemptive right.The definition,foundation and nature of shareholders' preemptive right are defined.There are different theories about its theoretical basis in the academic circle,but its fundamental purpose is to maintain the human unity of the limited liability company.From the perspective of different interests,there are different theories about the nature of shareholders' preemptive right.Chapter Two combs the evolution process of Chinese legal norms about shareholders' preemptive right longitudinally.The Company Law enacted in 1993 first stipulated the system of shareholders' preemptive right,which was supplemented and revised in 2005.Until 2017,No.4 Judicial Interpretation of Company Law made the further refinement and the consummation to exercise rules of shareholders'preemptive right with the big length.Throughout its evolution process,it follows that China's restrictions on equity transfer are more and more relaxed,and more attention is paid to the autonomy of the company.Chapter Three deeply analyzes the internal logical problems of shareholders'preemptive right.There are inherent logical loopholes and contradictions in the system through an in-depth analysis of exercising the rules reveals.Chinese law adopts the dual restriction mode of "consent rule + preemptive rule".However,due to the lack of specific rules of "ought to buy" and the large scope of application subjects of preferential purchase rule,consent rule is constantly empty.The establishment of the right of regret also conflicts with the legislative purpose.Therefore,no matter how detailed the judicial interpretation of the exercise of rules,if the internal logic of the system is not studied,the problems encountered in the judicial practice of shareholders' preemptive right cannot be solved.Chapter Four compares the extraterritorial laws to seek for the enlightenment on shareholders' preemptive right in China.France and Japan adopt the single-layer consent rule,in which implies the "preemptive right".The restrictions on equity transfer are loose.Britain pays more attention to the autonomy of the company,so the company's articles of association can freely stipulate the restrictions on the transfer of shares.In Taiwan,the "consent rule + preemptive rule" is the first dual-restriction mode.The restrictions on equity transfer are relatively strict.Mainland of China chose a middle way between strict and loose restrictions on equity transfer.The institutional framework of shareholders,preemptive right in China borrows from the strict dual restriction mode in Taiwan and mixes the loose single-layer consent rule in France and Japan.Chapter Five tries to put forward suggestions to improve shareholders'preemptive right,based on the dual-restriction mode.Firstly,clear its fundamental legislative purpose,which is to maintain the human joining of the limited liability company.Secondly,give the substantive meaning to "consent" and narrow the scope of the application of preemptive rule to substantialize consent rule.Thirdly,the right to regret should be limited.Finally,give full play to the role of the company's articles of association to make up for the loopholes of legal norms.Meanwhile,prevent major shareholders from infringing on the legitimate rights and interests of minority shareholders by taking advantage of the advantages of voting rights.