On The Exercise Of Shareholders' Preemptive Right In A Limited Liability Company

The system of shareholders' preemption right is established to maintain the company's humanness.Generally speaking,limited liability companies have a small number of shareholders and a small scale.Under the restriction of the pre-emptive right system of shareholders,the external transfer of equity can be restricted and the character of personal trust of limited liability companies can be guaranteed.Through the analysis of the provisions of laws and relevant judicial interpretations,the requirements in the exercise of shareholders' pre-emption right can be broken down into the subject,exercise procedure and substantive requirements of the exercise right.The law of our country is relatively general,so it is necessary to explore them one by one in order to better apply them to commercial practice.Based on the analysis of relevant legal provisions and the investigation of specific cases,it can be seen that the subject exercising the right of pre-emption of shareholders should not exclude the shareholders who agree to the external transfer of equity,otherwise it will run counter to the legislative intention and will have the opposite effect in commercial practice.Through the method of system interpretation and literal interpretation,the conclusion can be drawn that the shareholders who agree to the foreign transfer of equity have the right to exercise the preemptive right.In addition,the capital contribution defects of other shareholders in the company should be subject to the right limitation because of the capital contribution defects,and they lack the credit to pay the price required to exercise the pre-emptive right of shareholders,so the exercise of the pre-emptive right of shareholders should be excluded.In judicial practice,there is usually no support for the shareholder's request to exercise the proposed transferred equity.In addition,the hidden shareholders have no rights and obligations with the company and other shareholders,and lack the basis to exercise the rights,so they only enjoy the right of claim on the obvious shareholders,so they should not be included in the subject of exercising the pre-emptive right of shareholders.It is an important procedure to perform the obligation of notice in the exercise ofshareholders' preemptive right.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(IV)makes further provisions on the notification obligation of transferring shareholders.Through the analysis of the relevant provisions,we can see the attitude of the supreme people's court to the assignment of shareholders' notification obligation.The first is to include two or more notifications.The first time should be to seek the opinions of other shareholders on the external transfer of equity,the second notice should contain the specific matters of equity transfer,and ask other shareholders whether to exercise the pre-emptive right of shareholders.Secondly,through the analysis of the legislative evolution of the external equity transfer system,it can be seen that before the amendment of the company law in 2005,the powers of the shareholders' meeting included approving shareholders to transfer equity to people other than shareholders,but the company law in 2005 and later deleted the powers of shareholders' meeting.Therefore,the shareholders' meeting of the company has no reason to fulfill the relevant notification obligation.In addition,in judicial practice,those notified by the company are usually deemed to be unqualified.In addition,due to the different order,the content of the notice should be differentiated.Based on the analysis of relevant legal provisions and cases in commercial practice,it can be concluded that the right of consent stipulated in article 71,paragraph 2,of the company law is the effective requirement of equity change.At the same time,it is also the premise for shareholders to exercise the right of pre-emption.The provisions also give the transferring shareholders the right to refuse to transfer the equity when other shareholders exercise their pre-emptive right of purchase.The establishment of such right of revocation is reasonable in commercial practice,which can restore the company to a stable state,price the transferred equity,and define the shareholder's preemptive right as the right of claim.However,the provisions of the right of reversion are too rough,there are unclear provisions on the circumstances applicable to the exclusion,unclear time limit for the exercise of the right of reversion and unclear provisions on whether the right of reversion can continue to negotiate the transfer of equity with a third party outside the company after the exercise of the right of reversion.Therefore,corresponding improvements should be made,such as the exclusion of the obligation to inform and the subjective evil of the transfer of shareholder's right of recourse,and set a deadline for the exercise of the right of recourse.Conform to the same conditions is the physical requirements of the exercise ofshareholders' right of first refusal,through theoretical analysis and combined with the judicial case investigation,determination of same conditions in the quantities,prices and have only general terms of payment shall strictly apply the same absolutely,flexible processing again when there is a special case,and review of rationality in equity transfer.In the specific content of the same condition,first of all,cannot be aimed at partial transfer equity exercise right.Second,in the case of a single clear price,the price agreed in the equity transfer agreement shall prevail,and in the case of specific transfer conditions,it shall be converted into monetary value.In the case of free transfer shall be determined by consultation or by reference to the market value.In order to solve the dilemma of exercising the pre-emptive right of shareholders in practice,I think it is necessary to build an independent anti-shareholder purchase system.First,the shareholders who do not agree to the transfer of equity purchase,and according to the negotiations or judicial evaluation to determine the purchase price.Secondly,in the case that the opposition shareholder fails to succeed in the acquisition,the shareholder who agrees to the transfer is granted with the shareholder's pre-emptive right.At the same time,set a time limit for the exercise of the two rights.