Shareholders' Consent Right And Shareholders' Priority Purchase Right In The External Transfer Of Equity

China's "Company Law" specifies the requirements for the establishment of a limited liability company,the guidelines for the establishment of a company's organization,the criteria for the distribution of equity,and the specific procedures for the dissolution and liquidation of a company.Article 71 of this article discusses the equity of a limited liability company.The external transfer system has two shareholder rights: shareholder's consent and shareholder's priority purchase.As an indispensable part of the procedure for the external transfer of equity,these two shareholder rights are beneficial to maintaining the company's human nature,the company's equity structure,and the interests of the company's shareholders,and have practical legislative value.Because the relevant provisions of the "Company Law" are too simple and incomplete,there have always been disputes in the academic and practical circles regarding the external transfer of shares of limited liability companies.At present,the "Interpretation of the Company Law(IV)" and the The "Minutes of the National Court of Civil and Commercial Trial Work Meeting" perfected the two shareholder rights and related disputes stipulated in the "Company Law",detailing the notification obligations in the shareholders' consent right,the equivalent conditions in the shareholder's priority purchase rights,and shareholders Protection of pre-emptiverights,protection of rights and interests of third parties other than the original shareholders after signing the equity transfer agreement,etc.Although the Judicial Interpretation of the Company Law(4)and the Minutes of the National Court of Civil and Commercial Trial Work Conference detailed the equity transfer rules in the Company Law and made up for some of the deficiencies.However,looking at judicial practice,disputes over the transfer of limited liability company's stock rights have always existed and are not enthusiastic.Most of them are for violations of the notification obligation in the shareholders 'consent right,violation of the shareholder's preemptive right,and other shareholders' preemptive right.The protection method of the company,the equity transfer agreement between the third party and the shareholder who transferred the equity fall into issues such as the liability to bear when the performance cannot be performed.The academic world has always stayed at the academic level to discuss the above issues.Rarely,the academic level and judicial jurisprudence have combined specific analysis,and it is important to correctly familiarize with shareholders 'consent and shareholders' right of first purchase.The premise,therefore,this article focuses on these two shareholder rights as the research center,and combines the provisions of the Company Law,the Judicial Interpretation of the Company Law(4)and the Minutes of the National Court of Civil and Commercial Trial Work on the transfer of equity in limited liability companies.Development and analysis,analysis of the nature,value,relationship of the two rights and the protection of rights and interests in the equity transfer system developed from this.In addition,since the Article 71 of the Company Law provides certain autonomy to the company's articles of association,in order to carry out targeted research,this article focuses on the autonomy of the company's articles of association as a way to protect rights and interests in special circumstances.In the analysis,the case of the external transfer of equity discussed in the article is mainly based on the situation that the company's articles of association do not have “other stipulated terms” and the external transfer of shareholders.This article consists of three chapters.The first chapter first analyzes the basic concepts of shareholder consent.From the value of shareholder consent and the valueof shareholder consent to shareholder's preferential purchase right,it analyzes the value of shareholder's consent.Lay the foundation for the relationship of rights;secondly,analyze the nature of shareholders' preferential purchase rights in combination with different doctrines,and pave the way for the following;finally,from the "Company Law","Judicial Interpretation of the Company Law(4)",Minutes of the Minutes of Civil and Commercial Trial Work Conference of the National Court of the People's Republic of China.The three laws make specific analysis of changes and improvements in the external transfer of shares of limited liability companies,especially the shareholders' consent and shareholders' prior purchase rights.The basic concepts of rights echo,The second chapter of this article mainly analyzes the relationship and current situation of shareholders' consent right and shareholder's preemptive right from the perspective of academic theory and judicial precedent,and summarizes a series of procedures for the external transfer of limited liability company's equity.The affirmation of the right to consent,and the specific circumstances that infringe the shareholder's right of first purchase,actually include the violation of the right to consent of the shareholder.In general,the value of this chapter lies in its mutual interaction with Chapter 1,and on the other hand,it lays the foundation for the analysis of the protection of the rights and interests of all parties in Chapter 3,because most of the cases extracted in Chapter 3 are This is a case of infringing the shareholder's preemptive right,but in these judicial cases,because the shareholder's consent is a prerequisite for the shareholder to exercise the preemptive right,the infringement of the shareholder's consent is included in the case of infringing the shareholder's preemptive right.The third chapter of this article takes the protection of rights and interests in the equity transfer system as the starting point,combines the different court decisions in the equity transfer matters and the judicial precedents,and discusses the methods of protecting the rights and interests of all parties.Shareholders' right of first refusal.This chapter mainly includes the following aspects: First,the Company Law and the Judicial Interpretation of the Company Law(IV)grant autonomy to the company'sarticles of association.The literal interpretation can be understood as the arbitrarily stipulating the shareholder's consent right and the shareholder's priority purchase right.It is the protection of two rights,as well as the rights and interests of transferred shareholders and non-transferred shareholders.However,because the terms do not specify the boundaries of the company's articles of association,in practice it is easy for large shareholders to use their rights to infringe the rights of other shareholders.Therefore,while protecting shareholders 'consent and shareholders' right of first refusal,specific measures should be taken to avoid the above two problems and protect the human nature of a limited liability company.Second,the Company Law and the Judicial Interpretation of the Company Law(4))"Has detailed the shareholders 'consent and shareholders' pre-emptive rights,and has given the" Notice Obligation of Shareholders to Transfer Equity "and" Other Shareholders Claim Prior Pre-emptive Rights to the Court." Protection of rights and interests,to avoid situations where other shareholders' preemptive rights are violated,and After-the-fact solution,on the other hand,can also be understood as the specific protection of the successful transfer of the transferring shareholder and the effective transfer of the third party's equity by the third party,because the law also gives shareholders the right of first refusal to purchase the rights against third parties.For example,after the certain time limit set by the law is exceeded,the shareholder's right of first purchase will no longer be guaranteed.Finally,the "Company Law Judicial Interpretation(4)"and the "National Civil and Commercial Trial Work Conference" issued by the Supreme People's Court The "Minutes" perfects the situation that "a third party can request the transferor to bear civil liability".Although this does not provide for the validity of the equity transfer agreement signed between the third party and the transferor,the third party is required to request the transfer.The right of shareholders to bear responsibility is also a form of protection for the rights and interests of third parties,which safeguards the legitimate rights and interests of third parties.