Research On The Exercise Of Shareholders' Preemptive Rights

The right of first refusal in company law is of great significance in safeguarding the interests of right holders,maintaining the internal stability of the company,promoting the development of the company,and stabilizing the market order.Therefore,it is particularly important to explore and clarify the nature of the rights of shareholders' preemptive rights,the exercise of essential elements,and the solution to the operational problems that exist in the exercise.In general,civil law countries generally adopt a legalist model to regulate shareholders' right of pre-emption,that is,this right must be clearly stipulated by law and not be formulated by other documents;Anglo-American law countries adopt a capitutism model to regulate shareholders' priority.The right to purchase means giving the company's articles absolute freedom of autonomy.However,this institutional arrangement is not absolute.Germany,as a representative country of the civil law system,adopts a captivating model for this right,while many states in the United States use the legalist model.The preemptive rights of shareholders were originally created in the legal system under the statutory model of the mainland legal system.As early as in the ancient Roman period,its relevant regulations had already emerged.The East Roman period Emperor Justinian made the earliest contribution to the emergence of this system.He integrated Greece's system of permanent rights into the taxation system of Rome,and stipulated that owners should transfer their power to the owners.At the same time when it had the right of first refusal,it changed the eternal right into an independent property right,giving it a separate naming and definite form.The rule derived from this institutional integration is that the right of eternal privilege must be transferred to its owner prior to the change of the privilege,and the transfer should be conducted under the same conditions.The theoretical community seems to have little attention to what kind of interest structure the shareholder's preemptive right system design reflects.There is also a bias in the understanding of the preferential structure of the right to purchase in the traditional academic theory,and it is considered that this system design focuses on protecting the interests of other shareholders.The author believes that a system from its initial presentation to its final implementation is essentially a tool of balance of interests,as is the right to preemptive right.This system not only takes into account the special value of the human rights of limited liability companies,but also considers For the company to inject new capital,new shareholders,the source of freedom of movement,it is necessary to achieve the screening mechanism for new shareholders,but also to protect the interests of the shareholders and good intentions of the third party,to achieve a balance of interests between the three protective effect.This article will take the newly issued judicial interpretation of company law as a perspective,combined with the history of the development of the company law in China and the relevant provisions of other countries for shareholders' right of first refusal.The relevant system concept,legislative purpose,and statutory model and chapter of the shareholders' right of first refusal will be determined.Different aspects of the model are comprehensively sorted out,and then the overall requirements for the exercise of shareholder preemption rights are conceptually and practically controlled.The focus of this paper is on the analysis of the actual exercise of the right of preemption and a careful analysis.Based on the author's consummate suggestions,the author aims to provide useful ideas for further improving the exercise of the shareholders' right of preemption.