A Research On The Right Of Repentance In Equity Transfer Of Limited Liability Companies

With regard to the transfer of equity by shareholders of a limited liability company,other shareholders claim that after the priority purchase,the transfer of shareholders can repent and abandon the transfer of equity,the theoretical point of view is opposite,and the practice is also very different.Article 20 of the Supreme People's Court's Provisions on the Application of Certain Issues in the Company Law of the People's Republic of China(hereinafter referred to as "Company Law Interpretation ?"),which was enacted on September 1,2017,clearly stipulates that the transfer of shareholders Other shareholders advocated that they could disapprove the transfer after giving priority to the purchase,giving the transferee the "reverse power" and unifying the refereeing criteria for the issue.However,there are many questions about the establishment and exercise of this right.First of all,the establishment of shareholder's right of repentance is highly controversial.Before the promulgation of "Company Law Interpretation ?",in practice,there is a diametrically opposite result of the transfer of shareholders after the other shareholders claim to exercise the right of first refusal.In theory,most opinions hold that the transfer of shareholders can be repented depending on shareholder priority.The nature of the right to purchase,but because of the constant controversy over the nature of the shareholder's right of first refusal,there is a contrary view on whether the transfer of shareholders can repent.Article 20 of the"Company Law Interpretation ?",although clarifying the position,gives the transferor the right to repent,but the unclear nature of the shareholder's right of first refusal also raises the question of the legitimacy of the clause.This time,the establishment of shareholders' right of remorse,the legislators cleverly avoided the qualitative problem of shareholders' preemptive rights,and believed that the transfer of shareholders' remorse has nothing to do with the nature of shareholders' preemptive rights.Based on the richness of the concession of shareholder's right of first refusal and the development of the theory of civil rights,simply equating the shareholder's right of first refusal into the existing type of right and deducing whether the transfer shareholder has the right to repent,is suspected of falling into the concept law And the deduction logic of "the nature of the right of first refusal-whether the transfer contract is established-whether the transfer of shareholders can repent" is itself doubtful.In addition,it is undeniable that the establishment of the right of repentance also has its inherent rationality:First,the establishment of shareholder's right of repentance does not undermine the humanity of a limited liability company,and essentially does not violate the original intention of the shareholders' preemptive right;Second,based on the incomplete certainty of the "equivalent conditions" standard,the transfer of the shareholders' right of remorse can better reflect the party's autonomy of the parties and conform to the principle of freedom of contract.Third,the transfer of the right of resentment to the shareholders does not undermine the existing balance of interests.On the whole,this right setting is conducive to the optimization of the interest transfer structure of the limited liability company's equity.Second,the specific rules for the exercise of shareholder's right of repentance need to be clarified.The right of shareholders to repent is the new right of the"Company Law Interpretation IV".There is only one article,more than one hundred words,and the content is too principle.Therefore,in order to reduce the right to exercise disputes,it is necessary to combine relevant theories and regulations to clarify the way in which their rights are exercised.,duration and effectiveness.First,the way shareholders exercise their right to repent.Although the cancellation of the equity transfer contract is a common way to express the reversal of the transfer of shareholders,the transfer of shareholders' right to exercise the right of repentance does not need to be based on the termination of the contract for the transfer of equity The transfer shareholders should express their express remarks directly to other shareholders,and should be confirmed in writing or otherwise.The reasonable way of receiving,implied and silent does not constitute a clear expression of remorse.Second,the period of exercise of shareholders' right of remorse.As a right directly affecting the effect of the exercise of the preemptive rights of other shareholders,the stability of the legal relationship and the high efficiency requirements of the commercial transaction determine the time limit for the transfer of the shareholder's right to use the right of remorse,and there is a"contract" on the time limit for the exercise of the shareholder's right of remorse.In the pre-establishment,"before the change in equity"and "before the change registration",this paper supports the dual restriction mode of"fixed period + change before registration".Third,the effectiveness of the shareholder's right of remorse.It is mainly manifested in two aspects:the preemptive right to fight against other shareholders and the liability for damages caused by the transfer of shareholders.If the transfer shareholder has the first act of infringing the preferential purchase rights of other shareholders as stipulated in Article 21 of the Interpretation of Company Law,if the other shareholders claim to give priority to the purchase,the transfer shareholder may still go back;if the transfer shareholder exercises the right of repentance,other shareholders have the right to request It compensates for reasonable losses,and the scope of compensation is limited to the loss of reliance interest.Finally,there are agreements and statutory restrictions on shareholder's right of remorse.First,the restrictions on the shareholder's right of remorse.According to Article 20 of the Interpretation 4 of the Company Law,the company's articles of association and all shareholders may separately make provisions and stipulates on the shareholder's right of remorse.Because the company's articles of association are also products of shareholder autonomy to some extent,this article collectively refers to the two."Contract restrictions." The difference between the two types of agreement restrictions is mainly reflected in the scope of the modification procedure and effectiveness.In view of the special modification procedures and applicable validity of the company's articles of association,in order to avoid the major shareholders'infringement of the interests of the minority shareholders,it is necessary to clarify the reasonable boundary of the shareholders' repentant rights regulations.Based on several possible scenarios in which the charter restricts shareholders' right of remorse,combined with relevant theories,the criteria for determining the boundary of the restriction are:it should be in line with the company's overall interests,and it is necessary for the company.Second,the statutory restrictions on shareholder's right of remorse mainly mean that shareholders' right of remorse must not be abused.The transfer of shareholders' abuse of anti-regliance is mainly manifested in the multiple improper repentance and repentance motives.Objectively,the transfer of shareholders'repeated repentances harms the interests of other shareholders and is contrary to the principle of honesty and credit;subjectively,the transfer of shareholders' intentions to evade equity through repentance The restriction of the transfer object or the opening of the equity transfer cycle bidding mechanism are all manifestations of the rebellious motivation.The transfer of shareholders' abuse of the right of repentance shall be regulated by legal means such as restricting the exercise of rights and compensating for losses.