Research On The Relief Of Shareholders' Preemptive Right

When the equity of a limited liability company is transferred to the outside world,the shareholders enjoy the right of priority to purchase the equity transferred by other shareholders under the same conditions,which is the shareholders' pre-emptive right.However,when transferring the equity to the third party,the two parties often collude in malice to cause the abnormal price of the second time,avoiding other shareholders to exercise the right of preemption.The focus of the dispute lies in the disunity of the recognition of the elements of the second abnormal stock price caused by malicious collusion and the disunity of the pricing of stock rights in practice.Based on the analysis of typical cases of shareholders and external third party infringing on other shareholders' pre-emption rights,this paper analyzes the relationship between malicious collusion and the protection of pre-emption rights from the perspective of the review of stock price in malicious collusion and the focus on the abnormal secondary stock price of transfer stock price.Finally,at the legislative level and judicial level,it provides referential suggestions for proper relief of shareholders' pre-emption right in judicial practice.Due to the existing laws and regulations of our country on the determination of malicious collusion in the judicial standards are not uniform resulting in a lot of judicial judgments of the same case with different phenomenon.This article through to the second excessively high price of judicial review and the components of the malicious collusion to study the basic problems such as,in order to make up for the shortage of the right of first refusal,the malicious collusion shareholders right of first refusal to provide relief to reduce such disputes,not only has the protection of the real meaning of priority right of shareholders,but also to the company law theory perfect.The paper consists of four parts:In the first part of this paper,on the basis of collecting and sorting out the three judicial cases of infringement of shareholders' pre-emption right,the author puts forward the problem of the non-uniform standard of judicial judgment for the determination of malicious collusion.In view of the abnormal secondary share price in practical disputes,does the court hold that the abnormal share price between the shareholder and the third party has the malice of subjectively damaging the preemptive right?The second part is legal analysis,focusing on the analysis of the pre-emption right of the two layers of legal relations and three subjects.Summarized in our country "Contract Law" and the company law and other laws and regulations about malicious collusion in,on the basis of value from the method of level analysis of the connotation of the transfer of the trading relationship between the shareholders and the third person certainly on the freedom of equity transfer and transfer of equity is the preemptive right of shareholders and the company legal relationship,emphasize the value of the people close to the limited liability company maintenance.Finally,it concludes that it is more reasonable to apply the "Company Law" to the determination of malicious collusion and more valuable to protect the shareholders' pre-emption right.The importance of the third part lies in that there is no uniform reference standard for the share price of a limited liability company when it transfers its equity to the outside world.As a result,the shareholders and the third party collude maliciously to raise the share price of the second transfer so as to avoid other shareholders from exercising the right of pre-emptive right,which further damages the interests of other shareholders.Hence this chapter to the United States,South Korea and Japan and other countries and regions legislation and regulation on the equity transfer price as an example,the contrast of our country's existing on solve the problem of excessively high secondary shares of applicable law,the focus should use the experience of the public is the shareholders equity transfer of equity pricing mechanism,direct response is excessively high price of stock transfer.The fourth part is the solution part.Aiming at the problem that it is difficult to identify malicious collusion,this paper proposes to draw lessons from the legal provisions of foreign countries and developed regions and propose that China should clearly stipulate the mechanism for determining the price of equity transfer,so that when other shareholders and transfer shareholders have disputes over the right of preemption,there can be laws to follow.On the other hand,under the circumstance that the existing legislation is not clearly stipulated,the presumption rule should be adopted to achieve the balance of interests between shareholders and other shareholders.