| Based on the hermeneutic theory and supplemented by the necessary legislative theory,this paper clarifies expounds,clarifies and reviews the behavior of infringing shareholders' pre-emptive rights and the relief mechanism of allocating for the damaged shareholders as defined in Paragraph 1 and 2 of Article 21 of Judicial Interpretation of Company Law(IV).The rule of shareholder's pre-emptive right which stipulated in Article 71 of Company Law is applicable to the transfer of the equity of a limited liability company.In this provision,the law makes it clear that when transferring the equity of company,the shareholder shall obtain the others agreement in advance and simultaneously give them the priority right to achieve the equity with equal conditions.From the analysis of the structure of legal relationship and the intention of legal norm,this rule is the specific application of authorizing a third-party norm in equity transfer.However,Company Law set up this substantive right but not allocate a reasonable relief mechanism for infringement.As for the blank in legislation,Article 21 of the Judicial Interpretation of Company Law(IV),on the one hand specifies the behavior types of infringing shareholders' pre-emptive right;on the other hand,stipulates the dual-track relief mechanism which based on the principle of other shareholders' pre-emptive rights and the supplement of damages.But the application of relief mechanism still exists loopholes and deficiencies.This paper consists of four chapters.Centering on Article 21 of the Judicial Interpretation of Company Law(IV),closing to judicial practice,combining of interpretation and legislation,the author accomplishes the work of filling legal gaps in the application of law that about the infringement relief of shareholders' pre-emptive rights,to achieve a comprehensive respond to the existing theories.The first chapter is introducing questions.Adopting the method of purpose interpretation,legislative interpretation and systematic interpretation,the author after expounding the violation of procedural provisions as defined in Article 21(1)of the Judicial Interpretation of Company Law(IV)and the injurious behaviors that preventing other shareholders from exercising pre-emptive right with fraud and malicious collusion,combs three legal loopholes of Paragraph 1 and 2 in the perspective of relief mechanism.Firstly,when there are less than thirty days to full one year from other shareholders know or should know equity transfer with equal condition to accomplishing the registration of equity change,completely protecting the others'thirty day period to considering if preempting is conflict with the relief mechanism stipulated in Paragraph 1 and 2 that the others after a full year only can claim damages;Secondly,after one year since the parties register the change of equity based on the invalid equity transfer contract,the conflicts exist between the relief mechanism of other shareholders only can claim damages based on this article and the stipulation about legal consequences of invalid legal acts in General Provisions of the Civil Law and Contract Law;Thirdly,Paragraph 2 although set up the relief of damages,doesn't clarify the essential issues such as the standard and the subject of compensation.The second chapter is the tentative analysis to the types of infringing shareholders' pre-emptive rights.It includes the analysis of two infringement performances that are form infringement and substance infringement as defined in Article 21 Paragraph 1 of the Judicial Interpretation of Company Law(IV),and the discussion about some difficult cases in judicial practice.First of all,Article 21 Paragraph 1 specifies the general means of infringement.Form infringement is the violation of the procedural provisions in Article 71 of Company Law when shareholders transfer equity;substance infringement is the two type that transferring shareholder infringes the others' pre-emptive rights by means of fraud and malicious collusion with the third party.Article 71 of Company Law authorizes other shareholders consent right and pre-emptive right to equity transfer.So,in the type of form infringement,the author expands with the two lines of "no other shareholders' consent was sought" and "other shareholders were not informed of the terms of transaction".In the type of substance infringement,the author except for explaining the infringement performance of fraud and malicious collusion,clarifies principle validity of equity transfer contract by combining of the forming right nature of shareholders' pre-emptive rights as original right.Next,the author discusses the difficult cases in judicial practice that about indirect transfer,multi-order transfer and debit transfer of equity whether constitute the infringement to shareholders' pre-emptive rights or not.In the indirect transfer,taking the Bund Land Case as an example,while affirming the validity of equity transfer agreement,the "penetrating effect" of equity is denied;In the illegality judgment of multi-order transfer,specifying that the four elements should be overall considered to make the judgement which are whether other shareholders claim preempting or not,price of each transfer of equity,time interval of multiple transfers and if the corporate assets change apparently during multiple equity transfer;In the debit transfer,there are situations in which transferring shareholder changes from the actual shareholder to the nominal shareholder and the third party entrusts a shareholder to purchase the equity of transferring shareholder.With the substantive analysis of debit transfer necessarily transferring the equity actually,no matter whether the third party emerges,or the nominal shareholder is a "puppet",the ownership structure of company will inevitably change and infringe the legal interests protected by shareholders' pre-emptive rights,therefore this transfer operation must constitute an infringement on other shareholders' pre-emptive rights.The third chapter is the review and loophole filling of relief mechanism for injurious other shareholders.Firstly,through reviewing the principle relief mechanism of pre-emption,the author reclaims and fills up the loopholes existing in Article 21 Paragraph 1 of Judicial Interpretation of Company Law.When there are less than thirty days to full one year from other shareholders know or should know equity transfer with equal condition to accomplishing the registration of equity change,if other shareholders want to claim pre-emption,they must sacrifice the remaining consideration duration from the registration of equity change to a full year.This is obviously unfair,so the condition of completing the registration of equity change for one full year should be regarded as an elastic condition.That is,under special circumstances,the maximum period for protecting shareholders' pre-emption rights is 1 year and 30 days.In addition,by reviewing the supplementary relief mechanism of damages,the author reclaims and fills up the deficiencies of Article 21 Paragraph 1 and 2 of the Judicial Interpretation of Company Law.Firstly,at the end of the one year since the parties complemented the procedure of equity change based on the invalid equity transfer contract,comparing the practicability of all solutions of ownership of equity,it is considered that restoring the system of other shareholders' pre-emption is most appropriate;Secondly,the amount of the damages shall be ranged in the direct losses incurred by other shareholders for seeking relied before the end of first instance debate,involving litigation costs,evaluation fees and evidence fees,and indirect losses including performance benefit.When the subject of claiming for damages are multiple shareholders,the respective amount of compensation shall be determined in accordance with the proportion of investment among them;Thirdly,the subject of compensation obligation shall be determined according to actual injures generally the transferring shareholder.When the third party conspire maliciously with the transferring shareholder to infringing other shareholders'pre-emptive rights,the third party also should be included in the subjects.The forth chapter is the epilogue.Rearranging the context of the paper,presenting the author's complete argumentation train of thought,and then overall interpreting and reviewing the Article 21 Paragraph 1 and 2 of the Judicial Interpretation of Company Law. |
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