| Article 71 of "Company Law" in China stipulates restrictive provision on the transfer of stock right.The article establishes the system of the preemptive right enjoyed by shareholders,aiming at defending the human resource integrity of companies,in the academic circle,there is a saying that the system is a procedural limitation.But there are many viewpoints as regards the identification of the validity of the contract of external transfer under the condition of procedure defect,or with procedures that fail to implement legal regulations in judicial practices,for example,theory of invalidity,validity pending theory,revocable theory and validity theory.Each viewpoint has its own theoretical defects,making the theories difficult to justify themselves.Most supporters of validity theory are led by the thinking of "Contract Law",they fail to analyze the functions of relevant articles of "Company Law" in their consideration of questions and seek the essence of questions.The key to solving questions should start with the regulation of Article 71,which limits the internal relationship of companies,in order to restrict the effect of the contract of external transfer on companies and other shareholders of companies,limiting the implementation of contracts of the transfer of stock right in essence,while the negotiation between the shareholders transferring stock right and the third parties and the effect of contracts won’t be affected.Through empirical analysis,comparative analysis,Hermeneutics analysis among other research methods,the author of the article discusses the issue of the validity of contracts,the whole article is divided into six parts as follows:Part one proposes the question——there are many different opinions in judicial practices concerning the identification result of validity of the transfer contract under the circumstance of violating the stockholders’ preemptive right,understanding of the article also varied,explanation and answer of the problems cropping up in practice are needed to guide practice.In Part Two,for the convenience of discussing the questions,a general introduction is given to the concepts and characteristics of the stockholders’ preemptive rightPart Three sorts out the relevant exotic legal regulations,and introduces the system of stockholders’ preemptive right in China.Legislative regulations are distinctive in various nations,but in general,companies are given autonomous right,the same is true in China.The issue of the validity of contracts discussed in this article is mainly reflected in local laws and regulations.Part Four is an empirical analysis of the current condition of the inconsistent identification of the validity of contracts of transferred stock right in judicial practice.Representative cases of theory of invalidity,validity pending theory,revocable theory and validity theory are selected as the starting point of analyzing judicial practices followed by simple analysis and comment.Part five seeks the limitation of the stockholders’ preemptive right on transfer of stock right through discrimination of functions of articles,returning to the regulations themselves,and elaborating on the actual influence on the validity of contracts,namely,the operation of contracts is not restricted,but the performance of the right will cause it unable to change the stock right,so as to protect the integrity of companies.As regards the issue of the effect of contracts,Article 71 of "Company Law" still belongs to special law.Part six is the conclusion part.The stockholders’ preemptive right is not limiting the establishment of freedom of contract by stock right,but limiting the fulfillment of contracts,in other words,the stock right can’t be changed due to the performing of rights by other stockholders,having no influence at contract operation stage and negotiation stages,identifying the effectiveness of contracts,causing no destruction to the stability of company,while the third parties can relieve their own rights and benefits maximally. |
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