| On September 1,2017,the Supreme People’s Court promulgated and implemented the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Company Law of the People’s Republic of China(hereinafter also referred to as "Several Provisions").The relevant provisions of the "Several Provisions" on the Shareholders’ Pre-emptive Rights(hereinafter also referred to as "Shareholders’ First Choice")once again aroused great discussion in academia and practice.This article logs in to the Chinese referee document network(http://wenshu.court.gov.cn/)and other platforms to retrieve statistical limited liability company equity transfer disputes,of which nearly one-third of the cases for shareholders priority purchase rights disputes.It can be seen that there is a big controversy among the shareholders’ right of first refusal in the trial practice.The purpose of this paper is to discuss the problems in the process of theoretical disputes and the application of the law in the process of the application of the priority of the shareholders of the limited liability company with a view to giving priority to the shareholders the right system has been improved.In addition to the introduction and conclusion,this paper is divided into three parts:First,the article discusses the basic theory of shareholder first choice.Shareholders’ right of first refusal means that when the shareholders of the limited liability company have transferred their shares held in accordance with the law,the other shareholders of the company enjoy the same conditions as the third party who is willing to accept the transfer to purchase the shares under the priority.And the nature of the shareholders first to buy the main claim is now said that the right to claim and the right to form said.This article supports the formation of the right theory,because thissaying can reveal the real sense of the shareholders first to buy the original purpose of the system,and can reveal the effect of the shareholders first right to buy the right to regulate the transfer of the transfer of shareholders,and can balance the protection of the interests of the three.In terms of the system value,the shareholder’s preemption system not only can maintain the human nature of the limited company,reducing the transaction cost,but also realize the legal value of balancing the interests of the parties.Second,combined with the theory and practice on the shareholders first to buy to discuss the dispute,the writer analyses the existing problems of the system.First of all,when the limited liability company shareholders transfer their equity,at this time related to the company’s human and other issues,in order to balance the interests of shareholders,to maintain the company’s human characteristics,China’s "Company Law" stipulates the "right of consent" and "preferential right of purchase" of other shareholders to restrict the external transfer of the shares of such companies,but at the same time does not give the company or other shareholders designated third party to purchase the right,nor the transfer of the transfer price.The other shareholders can only be transferred to the shareholders and the third party has been negotiated to determine the price of the exercise of the first call,if other shareholders cannot afford to buy,then the transfer of shareholders can transfer the equity to the outside of the third person.In view of the logical conflict in the existence of the clause,it is worthwhile to discuss whether this practice is worth discussing.Secondly,because the current law of our country stipulates the right of consent and the right of first refusal,and does not specify the subject of the right of first refusal,it makes the subject matter whether the subject of the right of first refusal only contains the dissenting shareholder.Thirdly,how to define the "same conditions" of the shareholders’ priority purchase right,the Company Law does not make specific provisions,resulting in that the judicial practice of these problems identified different."A number of provisions of four" to a certain extent,refine the relevant provisions,such as the provisions of the same conditions should include the number,price,exercise and duration,etc.,its publication and implementation of these problems can be some relief,but there is still many difficulties in trial practice.At the same time,with regard to the exercise of the right of first refusal,the "Company Law" has made clear rules that have been controversial in academic and practical practice,and there has been no uniformity in the trial practice." Several Provisions" clearly stipulates that the exercise of the right to exercise the minimum period of 30 days.In addition,the current law and the relevant judicial interpretation ofthe right to infringement of the priority of the contract for the effectiveness of the contract are not clearly defined,which makes the practice of priority purchaser,third person’s lack of legal basis.Finally,the scope of the "statute otherwise provided" is ambiguous,so that theoretically,the application of the pre-emptive right of the shareholders has been controversial.Thirdly,according to the problems discussed in the second chapter,on the basis of analyzing the various views and practice in practice,this paper puts forward some suggestions on the above problems,combined with the experience of advanced legislation.A right if there is no relief is equivalent to empty set.First of all,on the basis of the above,of the shareholder priority purchase right system to carry out legislative reconstruction,the author believes that from the legislative purpose and the advanced experience of foreign point of view,the priority purchase right system can guarantee the limited liability company,at the same time improving transaction efficiency.Secondly,in the choice of consent and priority purchase legislation,the author agrees to remove the right of consent and only stipulates the right of first refusal.In this model,the exercise of the right of first refusal should include all the shareholders other than the transfer of the shareholders.Of course,in the event of the transfer of shares within the company,other shareholders do not enjoy the right of first refusal.Again,on the same terms of the identification,I believe that should be clear,to reduce the occurrence of controversy in practice.In addition,on the exercise of the right to exercise the right to purchase,I believe that the exercise of the right to exercise the right of the shareholders should not be too long or too short.Otherwise,it will inevitably make the equity transfer process of the interests of the imbalance.If the term is too long,it will make the interests of the transfer of shareholders for a long time out of the uncertain state,and may make the transfer of shareholders to miss the best trading opportunities,so the transfer shareholders caused greater losses.However,if the term is too short,the preferred purchaser may not have sufficient time to measure the necessity of the transaction,thereby impairing the interests of the preferred purchaser.Thus,in the judicial practice,the exercise of the right to exercise the provisions of 30 is also more desirable.In addition,the validity of the contract on the infringement of the priority of the shareholders of the contract,I agree to effectively say that to regulate the transfer of shareholders of the equity transfer behavior,balance the protection of the right to enjoy the rights of shareholders and third parties.Finally,the protection of the right of first refusal,on the one hand,is based on affirmation and clarity at the legallevel and on the other hand the importance of the statute,which,as a legal right,does not preclude its application,is invalid.Although the current "Company Law" and the relevant judicial interpretation of the shareholders of the transfer of shares of the conditions and procedures are provided,but the reality of the company’s shareholders of the right to purchase the right to increase the number of cases,the type of the cases are gradually diversified.Due to legal rules itself is relatively lagging behind,so the current "company law" in the provisions of the law to solve some of the various types of disputes lacks of operability,and need to improve,enhance operational,and then maintain the shareholders of the priority purchase rights and market transactions the fairness and security of the company to ensure the effective operation. |
