Reconstruction Of The Restricted Mode Of Equity Transfer Of China's Limited Companies

The equity of a limited liability company has corresponding restrictions when carrying out external transfer,which stems from its human nature,closure and other qualities.Therefore,at the beginning of the promulgation of China's Company Law,the restriction rules on the transfer of shares of limited liability companies have been established,and since then,through the many amendments and amendments of the Company Law,and the implementation of the Judicial Interpretation of the Company Law(IV)by the Supreme Court,the rules on the external transfer of shares of limited liability companies have been further refined.However,the continuous addition and clarity of these rules has not achieved the positive effect of reducing the number of equity transfer disputes in judicial practice,and many practical disputes over equity transfer have also resulted in reduced transaction efficiency,higher transaction costs and other issues,greatly hindering the effective transfer of limited liability company equity,the value of equity transferability is greatly reduced.The reason for the above situation lies in the complexity of the restriction rules on equity transfer itself and the difficulty of applying them in practice.Based on the legislative provisions of the limited liability company's equity transfer restriction mode,combined with the judicial practice case summary,this paper discusses from the aspects of the rationality and corresponding deficiency of the restriction mode,the nature and normative nature of the company law,the reference of the extraterritorial restriction mode,the theoretical dispute of the limitation mode,and tries to answer the following three chain questions: Is the restriction mode necessary to modify? The theoretical basis and extraterriterior experience of the modification? And how to reconstruct and perfect the restriction mode?The main point of view of this paper is as follows: Through the analysis of the restriction rules of equity transfer of limited liability companies in China and the statistics,consultation and summary of the specimens of judicial practice cases,there is a great deviation between the operation mode of equity transfer in practice and the legal procedural steps,and in practice almost all only take the application of the right of priority purchase as the criterion.There are certain restrictions on the external transfer of the shares of limited liability company,which has its rationality,which stems from the nature of limited liability company,and is also conducive to protecting the shareholders' capital contribution rights and interests and promoting the stability and development of the company.However,there are corresponding deficiencies in the current mode of restriction of equity transfer,mainly in: the complexity of the triple rule restriction and exercise procedure due to the complicated legislative structure,the impact on the efficiency of the transaction due to duplication and loopholes between the rules,and the fact that the company's rights in the transfer are less and not substantially involved in the transfer of equity due to ignoring the company's will.The internal deficiency at the legislative level is the root cause of the above deviation.Therefore,the existing equity transfer restriction model needs to be modified.Through the discussion of the theoretical basis of company law and the normative nature of company law,company law should be a mixture of arbitrary and mandatory rules,and to the nature of the limitation clause,the existing default rules should be adhered to in the follow-up reconstruction model.Combined with the selection dispute of the restriction mode,and with the observation of the main limitation mode outside the domain,the establishment of a single-layer restriction mode can achieve the goal of guaranteeing the lock-up of the company and the free exit of the shareholders.Therefore,the modification of China's equity transfer restriction mode can be used as a reference,in the "consent plus other people's purchase mode" or "priority purchase right mode" to choose one.In connection with the reality of our country,the preferred right-to-buy model has greater advantages over the right-of-consent model,and the construction of a single right-of-first-choice model has both necessity,feasibility and optimality.Reconstruct the restriction mode of equity transfer to remove the consent rule and retain the priority right of purchase as the core.At the same time,the improvement of the restriction mode of equity transfer,that is,to guarantee the substantive participation of the company,to construct the company notification procedure and the decision mode of the company organs,to give full play to the autonomy advantages of the articles of association,to respect and determine the limitation utility and review standards of the articles of association,to strengthen the price mechanism of market transactions,to form the market transaction price and to exert the effectiveness of the pricing mechanism,is also an integral part of the systematic reconstruction of the restriction mode advocated in this paper,which can be determined by subsequent legislation or judicial interpretation.