On The Legality Of Limitation To Equity Transfer In Company's Articles Of Association

Limited company has the characteristics of both human and capital.Because of its small number of shareholders and small scale,it is deeply loved by small and medium-sized enterprises.But precisely because of the characteristics of human compatibility,there will inevitably be contradictions and conflicts between shareholders of limited companies.Under the current legal framework of our country,the delisting system of shareholders plays a vital role in maintaining the normal operation of the company,resolving contradictions and disputes among shareholders,and protecting the interests of trustworthy shareholders.However,in the Judicial Interpretation(3)of Company Law issued in February 2011,the provisions of the delisting system for shareholders are too general,and there are some problems,such as the narrow reasons for delisting and the poor operability of the delisting procedure,which make the system unable to fully play its due functions.In view of this,the author believes that it is urgent to improve the system of shareholder delisting in limited company.Based on judicial practice,the author found a large number of cases related to the system of shareholder delisting,and put forward corresponding suggestions for improving the system of shareholder delisting in limited company.This article altogether divides the following four parts to carry on the thorough analysis to this system.The first part is "an overview of the delisting system of shareholders in a limited company".This chapter makes a detailed analysis of the concept,characteristics,distinction from other systems and basic theory of the delisting system of shareholders in a limited company.Firstly,this paper expounds the definition of shareholder delisting system by scholars,summarizes it,extracts commonness,and obtains the connotation of shareholder delisting.Secondly,Secondly,the characteristics of the shareholder delisting system are analyzed,namely the particularity,compulsory,procedural,seriousness and absoluteness of delisting.Thirdly,the differences between delisting shareholders and judicial dissolution,transfer of shares and loss of shareholders' rights are elaborated.Finally,the basic theory of the shareholder delisting system is analyzed in detail from the perspectives of the theory of human compatibility of limited company,the theory of company contract and the theory of shareholder's fidelity obligation.The second part is "the analysis of the current situation of shareholder delisting system in China's limited companies".This chapter first elaborates the current situation of the shareholder delisting system from the legislative level,and analyzes in detail the deficiencies of the system in the legislative level,that is,the relevant judicial interpretation of the provisions of the system is too general,and the procedure is not operable.Secondly,it summarizes all the judicial cases of shareholder delisting from 2012 to October 2018,and analyses the judicial status of shareholder delisting system from four perspectives: trial procedure,delisting cause,jurisdiction area and the effect of delisting cause.The third part is "the problems existing in the delisting system of shareholders of limited companies in China".This chapter systematically demonstrates the substantive and procedural elements of the system.Firstly,it sums up the substantive elements of the shareholder delisting system which need to be perfected from the case: unclear subject of rights,too narrow prescribed reasons for delisting,unauthorized intentional reasons,imperfect legal consequences after delisting.Secondly,it summarizes the deficiencies of the system in the procedural elements from the cases decided by the court,including the choice of delisting procedure,the voting rules of delisting resolution,the non-standard pre-procedure,whether the voting rights of delisting shareholders should be limited,and the time when the delisting resolution takes effect is not clear.The part four is "Suggestions on Improving the Delisting System of Shareholders in Limited Companies in China".In this chapter,according to the shortcomings of the system of delisting shareholders in the entity and procedure elements,the corresponding suggestions are put forward.At the level of substantive elements: 1.The subject of delisting right should be the company,which should be decided by the shareholders' meeting.2.Except for the name cause,it should be perfected: the legal name cause should include such acts as violation of capital contribution obligation,abuse of shareholder's rights to damage company's interests,violation of prohibition of competition,etc.and other acts except the name cause should cover personal factors such as shareholder's health,property and violation of legal cause.3.Perfect the legal consequences of delisting: timely registration of industrial and commercial changes after delisting;disposal of delisting shareholders' shares in accordance with the order of shareholders' purchase,third-party purchase and reduction of registered capital;granting relief rights to delisted shareholders;and improving creditors' right to know and appeal against delisting resolutions.At the level of procedural elements: 1.It is clear that the procedure of delisting shareholders should adopt the parallel mode of "resolution of delisting of shareholders' meeting or action of delisting".2.Define the pre-delisting procedure: the reasonable period should be 1-2 months;use written form to urge;the reminder will take effect when it reaches the controllable range of the delisted shareholders.3.Make clear the voting rules of delisting resolutions: exclude the voting rights of delisting shareholders;make clear the voting rules and proportions of delisting resolutions,that is,adopt a majority of the number of people,more than two-thirds of the absolute majority;4.Make clear the time when the delisting resolutions come into effect: in general,the delisting resolutions will come into force when they reach the controllable range of the delisting shareholders.