Deconstruction Of Generalized Shareholders' Preemptive Right And Study On The Effectiveness Of Exercise

The two issues of "the nature of shareholders' preemptive right and the effectiveness of its exercise" have been widely discussed in theoretical research and judicial practice,and various theories and jurisprudence have been formed.In addition to the controversial nature of these two issues,there is also an important reason that many scholars and judges failed to accurately deconstruct the right in the analysis,confusing the right of consent in the whole process of shareholders' preemptive rights with the narrow shareholders' preemptive right.Through the vertical deconstruction of shareholders' preemptive right,it can be found that the shareholders' preemptive right is a compound right,and the whole process includes two sub-rights of consent and narrow shareholders' preemptive right.In order to separately explore the different natures of the two and the effectiveness of exercise,while not destroying the customary appellations that have been formed in theory and practice,the “shareholders' preemptive right” can be defined as a generalized shareholders' preemptive right or a shareholders' preemptive right system.The right of consent and the narrow shareholders' preemptive right are treated as two sub-rights for independent discussion.Through the horizontal deconstruction of the generalized shareholders' preemptive right,the exercise of the right can be divided into two major paths: the normal exercise of the constituent elements and the relief exercise of the violation of the constituent elements.Under the normal exercise path,only the exercise shareholders and the transferee parties are involved.The judgment of the nature of the right of consent and the narrow shareholders' preemptive right is an important basis for judging the relationship between the exercise shareholders and the transfer shareholders;under the remedial exercise path,it involves a tripartite party including an external third party(external transferee of the equity),and forms a confrontation relationship between the shareholder priority purchaser(generalized)and the external third party.In this case,it is necessary to explore the effect of the right of consent and the narrow shareholders' preemptive right,that is,the effect of the relief exercise of the two rights on the effectiveness of the transfer contract signed by the transfer shareholder and the external buyer.Since China's shareholders' preemptive right system stipulates that “unsatisfied shareholders should buy,otherwise they agree to be consent”,the consent right becomes a “weak right”.However,it cannot be considered that expressing consent is not a right,but not It is considered that the right to consent is a singular restriction on equity transfer.The right to consent to the protection of the human rights of a limited liability company is mainly reflected in the protection of the "human" appearance of humanity.It is a right to declare content and the "weak consent" is "weak" in order to comply.The special attribute of the limited liability company's humanity and capital is the balance sought between protecting the liability of the limited liability company and protecting the liquidity of the equity of the limited liability company.The existence of the right to consent has its declared meaning and balanced value and is an independent right.The inquiry into the validity of the consent exercise can be made with reference to the rule of no disposition.The equity of a limited liability company is not “complete” ownership.It shall be “complete” after obtaining the consent,and the foreign transfer contract signed without the consent is not entitled to transfer,and shall be the pending contract.At this time,the relief exercise of the right of consent is reflected in the right of recourse or rejection.However,in the judicial practice,in order to pursue the efficiency of trial and the uniformity of the referee,it tends to equate the relief exercise of the right of consent with the exercise of the narrow shareholders' preemptive right.This is also found in Article 21 of the Interpretation of Company Law(4).reflect.The narrow shareholders' preemptive right is a conditional creditor's right to form.The reasons are as follows: First,the effectiveness of the property rights of the property rights has a greater impact on the third party.Therefore,it should be accompanied by a publicity method with a stronger dominant effect.However,China's “Company Law” has a very high equity exchange rate.The prescribed formula is not obvious enough.The third person is too risky to confront and over-suppresses the liquidity of equity.Second,the strong dominance effect of the formation right is more in line with the "priority" requirement,but the private law is the autonomous field.The right to the “reverse” of the right holder(transfer shareholder)should still be given,and the transfer of shareholders' non-repentance is the achievement condition attached to the formation right.According to the "differentiation principle",in the case of relief exercise,the foreign transfer contract that has been legally and effectively established is not affected by the exercise of narrow shareholders' preemptive right and should be considered valid.In addition,the provisions of the Company Law for the narrow shareholders' preemptive right system are administrative mandatory provisions,and the violation of the constituent elements of the shareholders' preemptive right does not invalidate the contract's congenital nature.Of course,if the transfer of shareholders and external The trio has other statutory invalid reasons such as malicious collusion that harms the national interest,and the contract should naturally be invalid.