Research On Restriction Mode Of Equity Interests Transfer In Limited Liability Company

The difference between the limited liability company and the company liability company is the limited liability company has human rights.Many countries and regions restrict the transfer of equity interests in order to protect equity interests transfer freely and maintain human rights.The restriction rules of equity transfer originated in France,and China promulgated the company law of the People's Republic of China in 1993,it has established the restriction rules of equity transfer.When the company law was amended in 2005,the system of restriction of equity transfer was also refined and supplemented.And there are already judicial interpretations that provide for the correct application of the restriction system of equity transfer.However,the number of cases of equity transfer disputes is still high.There are still some problems in practice,such as reducing transaction efficiency,increasing transaction cost and deviating from the original intention of legislation,it has affected the transfer of equity in limited liability company.This paper intends to make suggestions for the improvement of the restriction rules of equity transfer in China by compare the rules of other countries and regions on the limitation of equity transfer,combining with the existing company law system of our country,andcontacting the legislative purpose of the restriction of equity transfer.The first chapter introduces the dual restriction mode of equity transfer of current limited liability companies in China and the present situation of practice,and points out the problems existing in the restriction mode of equity transfer in China.The dual restriction mode refers to the application of the consent rule and the preemptive right rule successively,thus forming the dual restriction mode to the equity transfer.The dual restriction mode has different degrees of deviation from the principle of good faith,the principle of transaction cost and the principle of transaction efficiency.Because of the complex structure of the current equity transfer model and the lack of clarity in the specification of the provisions,the theoretical problems of the dual restriction mode have not been solved and cannot provide effective guidance to the parties.In practice,there is an omission of the dual restriction mode,the Court does not clearly distinguish the consent rights and preemptive rights of other shareholders,tends to ignore the right of consent,in the actual operation of the parties,there are also the transfer of shareholders to use the market means to the other shareholders of the right of consent,so that the right of consent is hollow.The second chapter explores the legislative purpose of the restriction mode of equity transfer.The human nature of limited liability company is regarded as the most important reason to limit the transfer of equity,and the human nature has two levels of meaning,one is that the funders take their personal credit as the credit base of the enterprise,the other is the mutual trust among the funders.The human nature of the restriction of equity transfer of a limited liability company refers to the latter,in order to maintain the state of mutual trust between equity,to give shareholders the right to refuse the unwelcome person to join the company.The reasons for the restriction of equity transfer in each country are not only based on the human nature of the limited liability company,but also the legal basis includes the expectation based on the equity contribution,in order to maintain the corporate governance structure and balance the interests of the various subjects.However,human integration is not always very important for limited liability companies,it will vary depending on the period in which the company is located and the size it has.Therefore,the design of the equitytransfer system should find a balance between protecting the company's human nature and maintaining the free transfer of equity,.The third chapter studies the restriction mode of equity transfer through the introduction of the restriction system of equity transfer in France,Japan and Taiwan,China.By comparison,it is found that both France and Japan use a single-layer restriction model.While French companies can set priority purchase rules through charters,when there are priority purchase rules,consent rules are not applied,and in any case neither rule will be applied at the same time,essentially a single-tier restriction model.Although the form of double restriction is adopted in Taiwan,the double restriction mode has special legislative purpose,and its restriction on the transfer of shareholders is different from that of our country.In addition to the choice of the restriction mode of equity transfer,the legislative experience of these countries and regions is also worthy of our country's reference in terms of the way of determining fair prices and the determination of the subject of the subject of ownership.The Japanese company law stipulates that when a company does not agree to a transfer of equity by a shareholder,the equity may be acquired by the company or by the company's designated assignee,or it may be acquired jointly by both.France also stipulates that the subjects that can acquire the underlying equity include shareholders.The other person and company designated by the shareholder.Because both France and Japan adopt a single-layer restriction model,there is no equivalent price in the external transfer of equity,and two countries have very detailed provisions on fair prices,which are manifested in the mode of intervention by the court before consultation.Based on the above legislative analysis of these countries and regions,to obtain its legislative experience on China's enlightenment.Mainly includes the following aspects,first of all,the single-layer restriction model is enough to achieve legislative purposes,China only use the consent rule can simultaneously achieve the protection of corporate compliance and ensure the smooth withdrawal of shareholders from the company's legislative purposes;second,the company as the recipient and sender of the notice at the same time the company can also become one of the equity assignee;There are many ways to determine fair prices,France will integrate a variety of ways to apply,and also adopt the advantages of various methods,it is worth learning from.The fourth chapter puts forward some suggestions for improving the restriction mode of equity transfer in view of the present situation of company law legislation and judicial practice in China.Construct the single-layer restriction mode of equity transfer,retain the consent rule,delete the preferential purchase rule,and better balance the value of the harmonious value and the free transfer of equity.After removing the preferential purchase rules,we should perfect the existing consent rules,first,establish a clear way of fair price determination,learn from the fair price determination methods of France and Japan,respect the results of inter-shareholder consultation,and provide a reasonable and efficient price determination method for shareholders when the negotiation fails.To clarify the obligations of the company at the same time to give the company the right,the company to assume the transfer of equity transfers to other shareholders and other matters of notice of the obligation,and the company can also be the subject of the purchase of the underlying equity.The company law should provide reasonable rules for the commercial subject to ensure the healthy and stable development of the company's organization.The double restriction system of equity transfer increases the transaction cost of each party trader,and the overly complicated procedure affects the transaction efficiency.The requirement that the consent rule is too simple can not provide clear guidance to the parties,so that it is at a loss in the equity transfer transaction,and it also brings difficulties for the court to hear the case of equity transfer.Combing the equity transfer system,clarifying the legislative purpose of the system,deleting unnecessary procedures,reducing the burden on the parties,is conducive to creating a more harmonious and orderly trading environment.