Research On The Judicial Judgement Of Disputes Of Preemptive Right Of Shareholders

With the rapid development of the market economy,the equity transfer becomes increasingly frequent and more and more complex.The disputes arising from equity transfer which account for large proportion in the case of corporate disputes are also increasing.And the disputes of preemptive right of shareholders cause continuing discussion in both academia and practical realm especially.As one of the difficulties in the judicial practice,the complexity of preemptive right of shareholders is mainly reflected in the multi-party as well as the legal relationship involved.But article 71 and 72 of Company Law is so general,causing various problems in the practice that the judges should face with.Shanghai,Shandong Province,Jiangsu Province and Jiangxi Province have respectively issued judicial opinions.However,the provisions are different,which lead to the disunity of the judicial criteria.Judicial Interpretation of Company Law(Four)issued in September 2017 makes some supplements on the basis of Company Law.For example,article 16,article 19,article 20 and article 21 add the stipulations on prohibition of inheritance,the period of the time and the relief system which includes the effectiveness of confrontation of preemptive right of shareholders as well as the right of rescission.Besides,article 17 expands the way of notification of equity transfer.And article 18 embodies the content about the equal condition.Generally speaking,the provisions of Judicial Interpretation of Company Law(Four)make up for the inadequacy of Company Law and the stipulationsinvolved with preemptive right of shareholders become more detailed in the existing system.Nevertheless,some of the provisions mentioned above are still controversial.And from the current research situation,most of the existing research which puts forward some suggestions by analyzing the problems of preemptive right of shareholders stays at the theoretical level.Few studies start with the specific cases in judicial practice,combine with the specific application of such system and make analysis on the problems in the practice.Therefore,from the perspective of judicial judgement,this paper seeks to extract the focus of disputes from the judgements of various courts by reading a large number of cases and makes a summary on the problems existing in the practice.In the meanwhile,this paper analyzes the problems mentioned above from the perspective of both the theories and Judicial Interpretation of Company Law(Four)so as to come up with suggestions for improvement.This paper consists of four chapters.The first chapter is about the basic matters of preemptive right of shareholders in the first place.In the second place,it analyzes the legislative purposes and the value pursuit of preemptive right of shareholders from three aspects,that is,the sociological value,the economic value and the legal value,which lays a solid foundation for the following analysis of the specific exercise rules of preemptive right of shareholders.In the last place,it clarifies the law concerning preemptive right of shareholders from the aspects of the historical development of Company Law as well as the stipulations of the newly issued Judicial Interpretation of Company Law(Four).What's more,it also tries to explore the legislative logic behind such system in the angle of the changes from the specific provisions.The second chapter,from the perspective of judicial judgement,makes analysis on the exercising conditions and the current situation of judicial practice.Specifically,on one hand,on the basis of a large number of cases,this part summarizes the status quo of preemptive right of shareholders from three aspects,that is,the year,the geographical distribution,and the level of trial.On the other hand,this part uses the specific exercise rules of preemptive right of shareholders in the judicial practice as the entry point,analyzing the main requirement,theprecondition requirement,the time requirement and the substantive requirement.In general,this chapter extracts the focus of the disputes when summarizing the court decisions,discovers the problems in the cases,and makes analysis on such problems through Judicial Interpretation of Company Law(Four).The third chapter discusses the most controversial issue in the judicial practice,that is,the effect of the contract which bothers the judges when preemptive right of shareholders is damaged.Based on the 25 related cases in the practice,this part sums up different judgements of the courts on such issue mentioned above and has the following conclusion.Firstly,the contract is invalid.Secondly,the validity of the contract is pending.Thirdly,the contract is voidable.Fourthly,the contract is valid.Lastly,the contract is valid but cannot be performed.This chapter makes analysis on the conclusion mentioned above with the normative analysis method and probes into such issue with the related provisions in Judicial Interpretation of Company Law(Four).The fourth chapter mainly analyzes the relief system of preemptive right of shareholders under article 20 and article 21 of Judicial Interpretation of Company Law(Four),which mainly includes the following aspects.First of all,the Judicial Interpretation mentioned above endows transferor with the right of rescission to defend his right.This part sums up the different judgements of courts in relation to the five related cases in the judicial practice and confirms the existence of such right from the perspective of the rationality of the right setting.Secondly,the Judicial Interpretation endows preemptive right of shareholders with the effectiveness of confrontation to remedy the rights of other shareholders.In the end,this paper explores the business logic of preemptive right of shareholders from the perspective of the relief system,and finally returns to the legislative logic of preemptive right of shareholders,that is,the maintenance of the personality of limited liability companies.