Research On The Restriction Of Share Transfer In The Joint Stock Company

As the economic capital market development continues,Company has become the most common form of commercial organizations.From the initial partnership system and the joint-stock company to the listed company,the listed company has a huge financing market,and a sound information disclosure system which is an ideal form of company organization.But from the perspective of the company's historical evolution,the current capital market is not yet mature,a single organizational form cannot last for a long time.Only a variety of corporate organizational forms can meet the preferences of different investors.The non-listed company refers to a joint-stock company that cannot meet the listing requirements and whose shares cannot be traded on the exchange,which is set to distinguish from the listed company.Under the level of non-listed company,it also can be divided into non-listed public company and non-public stock company,according to whether it is publicly raised.Listed companies have the regulations of the "Company Law" and the "Securities Law".And non-listed public companies are regulated by "Measures for the Supervision and Administration of Non-listed Public Companies" issued in September 2012.However the relevant norms of non-public joint-stock companies have not been established.Non-public joint-stock companies are much closer to the limited liability companies in terms of structure and scale.In nature,it has the same openness and liquidity of joint-stock companies,which requires freedom of share transfer;while also has the characteristics of closure and humanity,which needs the stability of the share structure.So whether the shares can be transferred freely or not,in the end,depends on whether the restriction of share transfer can be included in the company's autonomy,that is,within the company charter.The charter is the basis for the realization of the company's autonomy.In order to maintain the stability of the share structure and inside humanity,company choose to set restrictions of share transfer in the charter is a basic corporate governance behavior,but in the other side this behavior may damage the share transfer right of shareholders.The blank of restriction rules in legislation led to a disunited standard of practice in the administration of justice.The share transfer of non-public companies has been in a disorderly state which needs to be resolved.First of all,this paper is intended to solve the real problems of the institutional restrictions on share transfer.In reality,judges from various areas made different judgments on disputes over the restrictions on share transfer,which made it necessary to standardize the restriction system.Moreover,the regulation practice on the restrictions are various,some of which are based on reasonable restrictions that the company needs,and some of which are to cut off the exit path of shareholders and that is obviously unreasonable because it traps the shareholders in the company.In this regard,boundaries of the share transfer restrictions should be set,reasonable and unreasonable restrictions should be distinguished under the respect of share transfer principle and corporate governance.Besides,regulation blank of share transfer needs to be filled.Recent Company Law specifies the equity of the limited company,and approved that charter can impose its own restrictions on share transfer.But it is not clear to the joint-stock company.Article 137 is arbitrary or mandatory,which is still controversy in the theory.The way restricting share transfer to the joint stock company in charters has not been blocked by legislation,and it is possible to legalize charter restricts of share transfer.This paper is divided into four parts.The first part is to summarize the problems on the share transfer restricts through factual cases,which aims at the forward arguments.The second part is based on the comparative law to learn from the relevant extraterritorial legal systems;The provisions on the issues are relatively mature in many countries,such as the United States,Germany,South Korea and Japan,etc.We can sort out the relevant laws and regulations of the above-mentioned countries,absorbing the share transfer restriction systems that can be adapted to the basis of Chinese company law,then improve it,making it become local,to maintain the balance between the internal humanity and the protection of small and medium-sized shareholders in non-public joint-stock companies;The third part mainly expounds and proves the legal basis of share transfer restricts in the charter of non-public joint-stock companies.Shareholders invest and run the company together.Allowing the charter to set up the share transfer restrict system is not only a respect for the company's autonomy,but also a balance between the interests of shareholders and the company;In the last part,solutions are provided.The company law should re-examine the dichotomy of company type,take openness and closure as the sub-classification,and establish the share transfer restriction system of the non-public joint-stock company.Legislation may modify practical standards,and judiciary can establish relevant judicial interpretations,in order to resolve the disputes over share transfer restrictions,which may improve the efficiency of the company while taking into account the protection of investors' interests.