Research On The Judicial Practice Of Shareholders' Pre-emptive Right

The preemptive right held by a shareholder in limited liability company arouse controversy in academia and Judicial practice.The Company Law of the People's Republic of China(2005)stipulated notification obligation,notification content and equal conditions about preemptive right.But it did not have detailed explanation.Although we had the fourth judicial interpretation of Company Law of the People's Republic of China on 2017,it cannot deal with new judicial practice issues.This article will use methods to solve the problem about preemptive right and put forward proposal in order to improve the system of preemptive right.The methods this essay used include literature research,case study and induction.This essay has five parts.The first chapter includes research background,summary of domestic research,review of foreign studies,innovation,research methods and content.Summary of domestic research are different opinions of three topics that has the nature of preemptive right,effectiveness of equity transfer contract and price in equal conditions.Review of foreign studies are the summary of different countries' preemptive right systems.The purpose of this part is to provide new ideas to solve the problem and open up new directions to improve the system of preemptive right.The second chapter includes the meaning and significance of preemptive right,it also has the history of preemptive right.This part analyzed different equity transfer restricted models.It is the theoretical basis of following research.The third chapter and the fourth chapter counted cases about preemptive right between2017.09.01 and 2019.09.01.These cases form China Judgement Online.In these parts,the judicial practice problem will be analyzed.The analysis will combine with law and cases.There are six types of problems.They are effectiveness of equity transfer contract,issues during the exercise of shareholders' preemptive right,price in the equal conditions,dormant shareholders' preemptive right,shareholders' right of first refusal in the transfer of state-owned equity and shareholder's right of remorse.This article analyzes and summarizes the problems by categorizing them and combining relevant cases.In the issue of the validity of the equity transfer contract,the different judgments is analyzed to try to find the cause of "different judgments in the same case".In determining the period during which the right offirst refusal is exercised,the key to the solution is to determine the "received notice" and discuss and analyze it in conjunction with relevant cases.In the question of the criteria for price determination in the same conditions,the true meaning of "substantial equality" is sought.On the issue of the exercise of the preemptive right of the anonymous investor,it is necessary to find a way to protect the goodwill anonymous investor.In the issue of the exercise of the shareholder's preemptive right in the transfer of state-owned equity,through case analysis of the problem,discuss how to exercise the preemptive right to maximize the interests of the transferred shareholder while protecting the rights of the preemptive right holder.In the case of shareholder's right of remorse,the paper discusses how to judge the purpose of exercising the right of remorse and avoid the abuse of the right by the transferor.The fifth chapter is the conclusions on the solution to the disputes and suggestions for the improvement of the shareholder's right of first refusal.This chapter summarizes the judicial practice problems of shareholders' right of first refusal at first.Then combined with the opinions of experts and scholars,the system of shareholder preemptive rights in other countries or regions,and the analysis of judicial ruling documents to propose personal solutions about the judicial practice issues of shareholder preemptive rights and the improvement of the system.This article explores more possibilities in judicial practice.