On Shareholders' Preemptive Right

Shareholder preemption is the right to purchase the rights to other shareholders in the same conditions as the other shareholders in a limited liability corporation.Based on mutual trust and mutual investment between shareholders,preemptive right is a limited liability company shareholder a statutory right,embodies the "people" to the limited liability company of maintenance,and effectively guarantee the old shareholders limited liability company by the exercise of right of first refusal for control of the company.However,there are still some problems in the legislative system and practice of "shareholder preemption right".For example,the "right to consent" and "preemptive right" in China’s legislation are in parallel mode,resulting in cumbersome provisions and increasing costs;Due to the loopholes in legislation,the assignor and the third party in the judicial practice make malicious collusion to avoid the"shareholder pre-emption right" and infringe on the rights and interests of other shareholders;There are many problems in the specific application of the articles of autonomy stipulated in paragraph 4 of article 71 of the company law;And the disputes arising from the exercise of preemption by other shareholders.In this paper,based on the "company law" the seventy-first,combined with the case and comparing the related provisions of other countries and regions,the limited liability company shares involved in the external equity transfer analysis,the basic theory and around the"preemptive right of shareholders" system in the process of equity transfer of limited liability company several controversial focus on research and analysis on the legal issues.This paper consists of three parts:introduction,text and conclusion.The text is divided into four chapters:The first chapter introduces the legal basis of "shareholder preemption right" and the exercise of "preemptive right of shareholders".Equity transfer of external restriction system is based on mutual trust and cooperation between the original shareholders,the trust relationship strangers join and damage caused by equity transfer of close sex of reliance interest.In addition,the exercise of the preemptive right of shareholders shall be elaborated,including the subject of the exercise of rights and the conditions and time limit for the exercise of rights.The second chapter,by comparing the Anglo-American law system and continental law system countries and regions of external transfer limit system,the legislative model is divided into three categories:"consent" system "right of first refusal" system and parallel system,both in the company law in our country in paragraphs 2 and 3 of article seventy-one of the logical relationship of argument,combined with the related provisions of other countries and regions,to analyze the deficiency of our country legislation pattern.The third chapter,"preemptive right of shareholders" system in practice there are many shortage,this paper focuses on three points:a,equity shareholders in the external transfer can be part of the exercise is preferential buy right law there is no clear stipulation,there are some disputes in judicial practice;Second,through the case analysis of the equity transferor and the external third party through the legal loophole,malicious collusion to avoid "shareholder pre-emption right",thus infringing on the preemptive right of other shareholders;Article 71,paragraph 4,of the company law:"the articles of association have other provisions on the transfer of equity,from its provisions." This clause gives shareholders the right to autonomy in the transfer of shares through the articles of association.This clause is a term of arbitrariness,but it must be carried out in a certain extent and extent.However,in this clause,the wording of"make provisions" is too broad,there is no legal regulation,and there is a lack of margin.In the judicial practice,there is a case of the use of self-government to infringe upon the right of disposal of shareholders and preemptive right.Autonomy is of articles of association of external transfer to equity "consent" and "shareholders right of first refusal" autonomy or equity transfer itself,autonomy and "disposition",must be added to achieve the intention of lawmakers.Before the fourth chapter,according to the analysis of the "preemptive right of shareholders" system and its deficiency in legislation,the system of the other shareholders can be part of the exercise is preferential buy right,assignor and external malicious collusion to evade the third person "preemptive right of shareholders,the company’s articles of association autonomy" to "the impact of the shareholder’s right of first refusal",to learn from outside legislation,good advice and improve the measures are put forward.