Study On The Exercise Mechanism Of Preemptive Right

The foundation of a limited liability company lies in the capital invested by the shareholders to the company.The shareholders are often the company's producers and managers and directly participate in the company's business decisions.Therefore,the ownership of the limited liability company is closely integrated with the operating rights,making it an asset.The characteristics of conformity and human conformity.To protect the human attributes of limited liability companies,the "Company Law" gives more limited judicial autonomy to limited liability companies.At the same time,when the limited liability company's shareholders transfer equity to external shareholders,it sets up certain restrictions to imposed on procedures to prevent external transferees from entering the company at will through the transfer of equity in the company,thus damaging the human nature of the limited liability company.The right of first refusal to purchase as a shareholder should be narrowly understood from the third paragraph of Article 71 of the "Company Law," rather than the clause of Article 71 as a right of first refusal,and Article 71 actually covers the right of consent and right of preemption of the limited liability company for the transfer to the external transferee.The "Company Law" serves as the basic law for the protection of the company's operations and bears the balance of various interests.The interests of other internal shareholders that are closely related to the human attributes of limited liability companies are only one of the main interests guaranteed by the “Company Law.” In addition,the interests of external transferees and transfer shareholders involved in the process of foreign exchange transfer of shares are similar.It is also the object of "Company Law" protection.In the process of limiting the transfer of equity in a limited liability company,the "Company Law" sets the rules of consent right and right of preemption,aiming at maintaining the company's human nature,guaranteeing the freedom of shareholders' equity transfer and maintaining the interests of external transferees to reach a certain balance.In the exercise of the right of preemption,the rules closely related to it are the rules of consent of internal shareholders.The right of consent has always been one of the preconditions for the right of preemption.The academic community has both the idea of ? ? retaining the right of consent to cancel the right of first refusal and the idea of? ? canceling the right of consent to retain the right of preemption.It can thus be seen that there may be inherent logical contradictions between the right to consent and the right of preemption.However,the role of consent and preemption in the balance of interests mechanism is irreplaceable.However,as a precondition for exercising narrow right of preemption,there are still some operational problems in the right to consent.On August 2017,the Supreme People's Court issued the “Judicial Interpretation IV”,in which seven articles related to the right of preemption.Through the above seven articles,the Supreme People's Court's controversial discussions in the academic community and the difficulties in judicial practice.While further stipulations were made,certain rules were also innovated,but some of the issues in the right of preemption still need further discussion and observation.In view of this,this paper analyzes the relationship between the right of preemption and the limited transfer of equity,and clarifies the logical premise of the right of preemption.At the same time,it explicitly agreed with the justification of the right to set up,and further discussed the issues in the exercise of the right to consent.At the same time,this article analyzes and discusses specific issues that may be encountered in the exercise of the preemptive right and attempts to propose solutions.In addition to the introduction and conclusion,this article mainly elaborates on the following parts:The first chapter mainly clarifies the relationship between restricting the transfer of equity and the right of preemption.The analysis of the limited liability company's restrictions on the transfer of equity is due to its human attributes,but the attributes of these people should be relative and should not be the precondition for neglecting the establishment of a limited liability company is that it is eligible for employment.Next,it further analyzes the form and content of the restricted transfer of equity,and clarifies that the restriction on the transfer of equity in the “Company Law” should distinguish between two different internal and external situations.At the same time,the introduction of the system of consent and right of first refusal and international legislation example.The second section starts with the logical premise of preemptive right—that is,maintenance of human coherence,and discusses the human nature of“limited”.It is clear that the system of preemption rights is conducive to realizing the interest balance between human nature and equity transfer freedom.The second chapter analyzes the right of agreement with the right of preemption.Starting from the interpretation of the article,it proposes that the right of preemption should be understood in a narrow sense.It is believed that restricting the limited liability company to transfer the foreign equity is mainly through the right of consent and priority purchase.In this chapter,the precondition for the exercise of the right of preemption,the right of consent rules,will be clarified,and the specific issues in the exercise of the right to consent will be analyzed,including a detailed analysis of the procedures and contents of the exercise of the right of consent,and putting forward the recommendations.The third chapter mainly analyzes the issues related to the validity of the contract in the exercise of the preemptive right.First of all,this chapter starts with the nature of the right of preemption,sums up the various academic doctrines for the nature of the right of preemption,analyzes the main points of view,and after introducing basic doctrines,focuses on discussing and commenting on the two doctrines of right to request and formation.The rationality,at the same time,based on the nature of the right to request,judges whether the relevant provisions on the right to repent in the“Judicial Interpretation IV” are reasonable.Secondly,after clarifying the system of preemptive rights,proceeding from the nature,discuss the effectiveness of the contracts formed by external transfer of equity in relation to external transferors and other internal shareholders,and further discuss the relationship between contractual effectiveness judgments and the results of equity changes.The effectiveness of the contract should be distinguished from changes in equity.Finally,based on the theory of claiming rights,the author believes that the establishment of the right of repentance rule in the “Judicial Interpretation IV” has no direct influence on the validity of the contract,but the rule is consistent with the theory of claiming rights.Therefore,the rules on the right to repentance are elaborated and analyzed.The actual needs and significance of the establishment of the rules,and analyze the problems that may arise in the future practice,and try to propose recommendations.The fourth chapter mainly analyzes the issues related to the same conditions in the exercise of the preemptive right.First of all,this chapter starts from the conflict of interest in the exercise of the right of first refusal to analyze the conflict of interests of all parties involved in the transfer of equity,and clarifies the significance of the existence of the right of first refusal to balance the interests of all parties.Afterwards,further analysis of the same conditions in the system of preemption rights also plays a role in maintaining the balance of interests of all parties,avoiding over-protection of the rights of internal shareholders and preventing the abuse of rights.Finally,the author proposes to introduce the property guarantee system to promote the implementation of the same conditions in practice,and to avoid the shareholders who exercise the right of first refusal to establish a legal relationship with the transferring shareholder when they are unable to accept the transfer of shares on the same terms.To avoid the damage to the transfer of shareholder's freedom of equity transfer and the interests of the external transferee.