The Research Of The Validity Determination Of Share Repurchase Clause

Share repurchases is refers to the original shareholders in whole or in part to recover,companies become the process of their shareholders,the company law in China to share repurchases provisions in article seventy-four and article one hundred and forty-two,which stipulate the limited liability company shareholder may request the company to repurchase its stake in the company,but the reality often not be limited by specified circumstances,there has a big controversy in cases of share repurchases in judicial practice,the referee in court tend to use the legal standard to measure the cases of the agreed share repurchases,In order to avoid the risk of losing the lawsuit brought by the agreed share repurchase,the shareholders also tend to apply other litigation methods to achieve the purpose of repurchase.However,it is also undeniable that the agreed share repurchase plays a role in the protection of shareholders' rights and interests and the maintenance of company value.Therefore,this paper studies and discusses the effectiveness of agreed share repurchase from the perspective of identification.First of all,this paper starts with the analysis and introduction of the concept of share repurchase system in countries outside China,introduces the concept of share repurchase system in China,and demonstrates its legal significance and institutional value from two different aspects:legal repurchase system and agreed repurchase system.According analyzing the judicial practice data,this paper explains the judicial practice of agreed share repurchase by combining the current law application of agreed share repurchase.It analyzes the dispute focus of the sample case,and clarifies the situation of agreed share repurchase and the necessity of its judgment criteria.This paper analyzes the legal problems existing in the practice of agreed share repurchase and the judgment of the court by combining with specific cases.The agreed repurchase is different from the statutory repurchase,so the legality of the agreed repurchase cannot be completely denied based on the statutory repurchase in the company law.Basing on the analysis of different theories about the nature of agreed share repurchase in the theoretical circle,this paper concludes that the court has a deviation in the legal application between legal repurchase and agreed repurchase in judicial practiceThere has two dispute focuses in finding the effectiveness of the share repurchases in the court,this also highlights the regulation of our country of the equity repurchase system is relatively narrow,the one hand is related to the subject qualification of the agreed share repurchase is relatively narrow,when the court determines the qualification of the subjects of share repurchase,the company is the main subject,and the other subjects are often denied by the court.The narrowness of subject qualification greatly reduces the chance for shareholders to withdraw from the company through share repurchase,thus losing the final right relief.Therefore,it is necessary to expand the identification of the subject of repurchase and the qualification of the subject of request for repurchase,incluing the employee stock ownership group,the dissenting shareholders who do not need to exercise the right to vote and the shareholders who fail to exercise the objection due to their own reasons.On the other hand,the system of the agreed share repurchases are not clear,making the agreed share repurchase unenforceable.But the court accordances with the legal situation strictly,which greatly reduces the chance of a agreed share repurchases,and causes the abuse of shareholders when not involved in litigation;The agreement of share repurchase is not systematic and one-sided,which is unfair in the application.In terms of the improvement of the situation,it can be considered from multiple perspectives,such as the situation of requisition for repurchase,the situation of active repurchase by the company,and other multiple special situations,such as the "betting agreement".When reviewing and adjudication,the court should grasp the whole from the system to concrete in order to determine the validity of the situation greatly.There should have an unified standards of the agreed share repurchases,which coordinates the purpose of the legal equity repurchase,we should also considerate the interests of the subject of each,and introduce the capital examination system as the basis of agreed repurchase decided,at the same time introduce the action program.In addition,we should clear the responsibility between the subjects in the "bet agreement".This paper studies the problems existing in the court judgment and company practice of agreed share repurchase,and obtains the solutions through problem reflection,so as to make the agreed share repurchase play a better role in practice.By combining the agreed share repurchase and legal share repurchase,a more perfectshare repurchase system can be formed so as to promote the benign development of China's share repurchase market.