On My Country's Dissent Shareholder's Repurchase Request System

The system of repurchase rights for dissent shareholders first appeared in the United States,accompanied by the evolution of the company's voting mechanism changing from the principle of unanimity to the principle of capital majority.The repurchase rights for dissent shareholders are inherent,self-interest and formation rights.Regarding the function of repurchase rights for dissent shareholders,foreign scholars mainly have the following views:compensation function for shareholders losing veto power and function of providing constitutional interpretation(both are derived from legislative purposes);the function of improving the control of majority shareholders on the company;the function of making up for the lack of liquidity of the company;the function of pre-existing supervision;the function of discovery and the function analyzed by the preference harmonic theory.At present,the function of the system of repurchase rights for dissent shareholders in China is mainly to provide the exit for shareholders and provide relief for small and medium shareholders.Pre-supervisory function,discovery function and the function analyzed by the preference reconciliation theory are still not realized in China.China needs to further improve the system of repurchase rights for dissent shareholders.In our country,in the company law enacted in 1993 and the company law amended in 1999,there is no provision on the system of repurchase rights for dissent shareholders.Sectoral regulations in 1994 and 1997 began to take note of the protection of the interests of dissident shareholders,but the scope of application was narrow.In 2005,Articles 75 and 143 of the Company Law amended in China(now Articles 74 and 142)formally established the repurchase rights enjoyed by dissent shareholders of limited liability companies and joint stock limited companies for the first time.Later,the Higher People's Courts of Shandong Province,Shanghai Municipality,and Jiangxi Province made provisions on how to apply the system of repurchase rights for dissent shareholders in their guidance and answers on a number of issues concerning the trial of corporate disputes.The time period for the empirical analysis of the judgment of dissent shareholders is from 2013 to February 17,2019.The author conducted a search on the Chinese refereeing documents on the basis of Ha request for a company to acquire shares disputes".There are 275 judgments,and the number of judgments of other types of cases(such as employee stock ownership,agreement purchase of shares,etc.)is 159,and the number of judgments of dissent shareholders is 116.Through detailed analysis of these cases,the author summarized the following questions:First,when it comes to the situation that the company has not distribute profits in five consecutive years,dissenting shareholders often find it very difficult to provide evidence to prove that and are likely to lose the lawsuit;Second,how to determine the shareholders' qualifications necessary for dissent shareholders to exercise their rights?Does the nominal shareholder(the shareholder who has no actual contribution but is recorded in the register of shareholders)has repurchase rights?Does the anonymous shareholder(actual investor)has repurchase rights for dissent shareholders?Third,how should we determine whether the shareholders vote against the proposal of the shareholders' meeting or not?How is the form of the vote determined?What is the form of the dissenting vote?Must the dissent shareholders vote at the neeting?Fourth,how should the transfer of the companyls main assets be determined?Fifth,does the company has to pay interest on the repurchase payment,and if it is paid,when does the starting point of interest start?Sixth,how should we understand the expiration of the business period?Seventh,can the dissent shareholders request the company to repurchase only part of the equity?Eighth,whether the agreement with the company to repurchase the equity is the prerequisite of the procedure or not?Ninth,how should the price of equity be determined?Through the theoretical analysis and empirical analysis of China's repurchase rights for dissent shareholders system,the author finds out some problems in the application of the system of repurchase rights for dissent shareholders in China.By analyzing and drawing on the relevant legislative experience of other countries and regions and combining with the actual situation in China,the author puts forward some opinions and suggestions on perfecting the substantive and procedural rules of China's system of repurchase rights for dissent shareholders,hoping to provide some help in perfecting the system of repurchase rights for dissent shareholders in China.