Discussion On The Realization And Limitation Of Shareholder's Preemptive Right

With the development of China's modern enterprise system and the implementation of the Company Law,there are more and more disputes over the transfer of shares,especially with the shareholder preemption right system of a limited liability company.Because the Company Law is too principled,it leads to a large number of disputes in the process of application,which has aroused great concern in the field of domestic legal theory and judicial practice.From the point of view of judicial cases,the focus is mainly on the "equal conditions","notification obligation","exercise period" and so on.Specifically,"equal conditions",as the substantive elements of shareholders' preemption right,"notification obligation" and "exercise period" as the formal elements of shareholders' preemption right,will have an important impact on the realization of the right.However,because the Company Law does not make clear provisions on them,there will be differences in trial opinions to varying degrees for the same problem,resulting in the phenomenon of "different judgments in the same case".Although the Company Law Interpretation IV,which have been in force since 1 September 2017,refine the "equal conditions","notification obligation" and the "exercise period",there are still great disputes over some of the provisions in the theoretical and judicial practice circles.Whether the implementation of the new rules can play a decisive role in the solution of such cases remains to be tested by theory and practice.Therefore,with the Company Law interpretation IV,this paper will take the judicial decision as clues and adopts the empirical analysis and the research method of typed cases to focus on the "equal conditions","notification obligation" and "exercise period" of shareholders' preemption right disputes in judicial practice,this paper tries to explain the difficult problems in the previous judicial practice by using the new rules and academic theory.This paper wants to reveal the defects of the preemptive right system and put forward the corresponding suggestions for improvement.In addition to the introduction and conclusion,the full text is divided into five parts.The first part is the legal basis of shareholders' preemption right.This paper mainly introduces the meaning and characteristics of the shareholder's preemptive right,expounds the institutional value of the shareholder's preemptive right and sums up the legislative evolution of the realization and restriction of the shareholder's preemptive right.It also makes a comparative analysis of the changes and breakthroughs in the provisions of shareholders' preemption right in the latest judicial interpretation of the Company Law.The second part is the investigation of the judicial adjudication of the disputes of shareholders' preemption rights.This paper summarizes the remarkable characteristics of the disputes of shareholders' preemption rights in judicial practice.Specifically,the number of cases continues to multiply,the number of cases in developed regions is concentrated,the proportion of appeals is high,the types of disputes in cases are concentrated,the focus is prominent,and so on.The third part sums up the differences of views on the judicial decision of "equal conditions".Such as a single transfer price,a single transfer quantity and a comprehensive consideration.This paper makes a detailed analysis of the identification standard of "equal conditions" from the theoretical and legislative aspects.The fourth part aims at the identification of "notification obligation" and "exercise period".Focusing on the manner and content of notification and judicial judgment identification standard differences for "exercise period".The fifth part puts forward some suggestions on the shareholders' preemption right from the level of legislation and specific system.