Analysis On "Equal Condition" Of Shareholder's Preemptive Right

The right of first refusal refers to the right of the right holder to enjoy the preference of the third party under the same conditions when the seller sells the specific subject matter in accordance with the law or the contract.[The Judicial Interpretation IV of the Company Law No.7 Article 11: Shareholders of a limited liability company may transfer all or part of their equity to each other.When a shareholder transfers equity to a person other than the shareholder,it shall be approved by more than half of the other shareholders.Shareholders shall notify other shareholders in writing of their share transfer in writing for consent.Other shareholders who do not reply within 30 days from the date of receipt of the written notice shall be deemed to have agreed to the transfer.If more than half of the other shareholders disagree with the transfer,the shareholders who do not agree shall purchase the equity of the transfer;if they do not purchase,they shall agree to the transfer.Under the same conditions,other shareholders have the right of first refusal under the same conditions.Where two or more shareholders claim to exercise the right of first refusal,they shall negotiate to determine their respective purchase ratios;if the negotiation fails,the preemptive right shall be exercised according to the respective capital contribution ratio at the time of transfer.Where the company's articles of association have other provisions on the transfer of equity,the provisions shall prevail.From the perspective of the principle of equal empowerment of civil law,this right has made a certain degree of breakthrough,mainly in preference to other people's right to purchase a particular property,and the shareholder's right of first refusal described in this article is among them.One.Article 72 of the "Company Law" gives shareholders the right to be based on the principle of free transfer of equity,in order to protect the company's humanity and closure,to a certain degree of restrictions on shareholders' rights.However,Article 72 has many difficulties in practical operations,such as legal guidance and refereeing.It is mainly manifested in the fact that the regulations are too vague and broad,and there are many disputes.Among them,the "equal conditions" among the more prominent preemptive rights.This is the case.Therefore,the correct definition of "equal conditions" has become a top priority.With regard to the analysis of this issue,this paper intends to discuss the "equal conditions" in the pre-emptive right from the following ideas: First,take the guiding case on the pre-emptive right in the Supreme People's Court Bulletin as the entry point,and focus on the focus.Briefly summarize,in order to lead to the discussion of the "equivalent conditions";secondly,analyze the content of "equal conditions",divide it into general conditional content and special factors,and divide special factors into convertible special factors and It is not possible to convert special factors and try to discuss the relationship between them and the "equivalent conditions" considerations;again,to study the certainty of the "equivalent" criteria,according to the nature and importance of each element,such as from Generally speaking,the consideration of the standard and the partial exercise of the right of first refusal;in the end,the problems in the analysis are solved one by one,and corresponding countermeasures are proposed,such as from clearly identifying the content,unifying the standard,balancing the interests of the three parties,and limiting the discretion.To elaborate.