The Study Of The Boundary On The Autonomy Of Shareholders' Preemptive Rights

The preemptive right of shareholders is a system designed to balance the contractual nature of limited liability companies and the freedom of equity transfer in the company law.With the rapid development of market economy,the shareholder's preemptive right plays a more and more important role in commercial activities.The fourth paragraph of article 71 of the Company Law of China allows the articles of association to make separate provisions on the preemptive right of shareholders,which is a landmark legislation reflecting the autonomy of the company.However,there are still disputes over the applicable boundary of the autonomy of the articles of association of the preemptive right of shareholders,which brings great troubles to the theoretical research and practical operation.At present,there are many different judgments in the society,which not only affects the certainty and predictability of judicial trials in corporate dispute cases,but also impairs the uniformity and authority of law application.This phenomenon needs to be reversed.This article is dedicated to providing some ideas for defining the boundaries of the autonomy of shareholders'pre-emptive rights.In addition to the introduction,this article is divided into five parts,the specific structural framework is as follows:In the first part,by comparing the Coroin case in the UK and the Bund Prime Lot case in China,the author puts forward the following question:within what scope can the articles of association make provisions on the preemptive right of shareholders different from the provisions of the Company Law,or what is the autonomous boundary of the articles of association on the preemptive right of shareholders?This issue will be defined throughout the text.In the second part,the author discusses the legal basis of autonomy of company's articles of association,learns about the relationship between the autonomy of company's articles of association and the autonomy of private law,uses the method of normative analysis,analyzes the changes in the Company Law of China in 2005 and emphasizes on the significance of terms of this change.In the third part,the author analyzes the value and nature of shareholder's preemptive right,and conducts a comparative analysis of the extraterritorial laws of the equity transfer according to the classification of the civil law system and the common law system.It mainly introduces the regulations of France,Germany,Taiwan,the United States and the United Kingdom.Finally,the author summarizes the previous evolution of China's legislation on shareholder's preemptive right and the judicial interpretation ? of the Company Law.In the fourth part,the author summarizes the types of cases in practice through the collection of judicial cases.According to the relationship between the articles of association and the company law,the relevant provisions of the articles of association are divided into copying regulations,restrictive regulations,loose regulations and exclusions.The four types are defined,and attempts are made to propose reasonable standards and principles for the definition of the boundary of the autonomy of shareholders'preemptive rights.In the fifth part,the author makes a classified discussion according to the autonomy of the right of disposition and the autonomy of the procedure of the transfer.When it comes to the right of disposition,the author makes a concrete analysis on the exercising subjects of the preemptive right,whether the preemptive right can be partially exercised,the inheritance of stock right,and the autonomy of the transfer of shareholders'right of rescission;When it comes to the procedure of equity transfer,the author makes a concrete analysis of the autonomy of articles of association in terms of notice,term and price,and puts forward that it is expected to draw lessons from American case law to define the boundary of autonomy of articles of association in terms of rationality,legitimacy and awareness standard.