Research On The Legal Issues Of The Preemptive Right Of Shareholders Of Limited Liability Company

Limited liability company is a typical closed company,which has both human and capital cooperation.The promoters of the company gather based on mutual understanding and trust,and set up a limited liability company on this basis.It can be said that human cooperation is the basis of the company's survival.The essence of the establishment of a company by businessmen is to make profits,so the development of the company is inseparable from the flow of capital and equity.In order to solve this problem,the law gives other shareholders the right of preemption,that is,the right of preemption.On September 1,2017,the judicial interpretation of the company law(IV)(hereinafter referred to as "interpretation IV")was put into effect,which also brought the basic system of the preemptive right of shareholders into view again.The timely promulgation of the judicial interpretation solves some substantive and procedural problems of shareholders' preemptive right,such as giving the same criteria,giving shareholders the right of estoppel,making clear the way and time of notice,etc.,which to some extent make up for the omissions of the company law and reduce the problems that cannot be identified in judicial practice because of no basis.However,the law inevitably lags behind.With the continuous development of market economy,the scale of limited liability company is also expanding,and new problems follow.Through the analysis of Article 71 of the company law,the author finds that there are contradictions between the rules of equity transfer,so that there is still some confusion in the articles of association and the restrictions in judicial practice.If the articles of association of the company restrict the extent of the preemptive right of shareholders,whether the preemptive right of shareholders in indirect acquisition should be extended and applied,and the position of the preemptive buyer of shareholders in judicial auction procedure,it needs to be guided and guided by legislation,judicial interpretation or official guidance cases.This article attempts to compare the relevant provisions of the system of shareholders' pre emptive right abroad,analyze the advanced nature and applicability of the foreign system,and find a system reference for the improvement of the shareholders' priority purchase right in China.Such as drawing lessons from the purpose test of the preemptive right of shareholders in the United States and the rules for the parties to know,and clarifying the legality of the restrictions on this right in the articles of association.At the same time,the author believes that it is necessary to sort out the rules of equity transfer and clarify the scope of articles of association in Article 71 of the company law and the extent of restrictions on the preemptive right of shareholders in the articles of association so as to ensure the freedom of equity transfer,and clarify the effectiveness of the contract of equity transfer to the outside world to protect the preemptive right holders,third parties and legitimate interests.The reconstruction of legislation mode and the design of relevant systems are all aimed at maintaining the stable development of China's limited liability company and the vital interests of shareholders,and seeking the balance between economic development and rights protection.