Research On The Right Of Request For Share Repurchase Of Limited Liability Company

The company's voting mechanism has transitioned from the principle of unanimity to the principle of capital majority decision,which has improved the company's decision-making efficiency and maintained company's stability.However,with the improvement of the socialist market economy,the company's operating methods and contents have also changed.When the company made a major decision,there has been a situation where the controlling shareholder damage the interests of minority shareholder with abusing the principle of capital majority.In the early days of the establishment of the Company Law,a strict statutory capital system was adopted,which focused on the interests of creditors and had not yet paid attention to the investment interests of shareholders.Nowadays,investment has become an important activity of the market economy,and protecting the investment interests of shareholders is gradually on the agenda.Therefore,the appraisal right came into being.The nature of the appraisal right is the right to form,self-interest,inherent rights and individual shareholder rights.The theoretical basis of this right includes the right of expectation theory,corrected capital majority theory,group decomposition theory,and economic analysis law theory.The appraisal right is important for minority shareholders to withdraw from the company.This right not only conforms to the principle of equality in civil and commercial law,breaks the deadlock of the company,but also facilitates the harmonious development of the company.Article 74 of the Company Law amended in China established the appraisal right of limited liability companies.Because the content of the article is simple and difficult to operate,which causes shareholders to have difficulties in exercising this right,the courts have different ruling standards when handling such cases,and finally there are different results in similar cases.Therefore,it is necessary to improve the appraisal right in many aspects.In order to adapt the system to China's development status,it needs to be analyzed in conjunction with judicial application.Therefore,there is still a lot of research space to start with practical analysis,combined with theoretical research.In terms of practical analysis,The author searched on PKULAW.COM with the keywords of "the limited liability company" and "the appraisal right".After screening and sorting,there are 183 cases related to the appraisal right of limited liability companies.After sorting and analyzing these cases in detail,the following questionsare drawn:First,in the process,whether shareholders must vote against the resolution of the shareholders meeting to meet the prerequisites for the exercise of this right?Second,the article do not specify the subject of the exercise of rights.Are anonymous shareholders and non-voting shareholders eligible? Third,In the legal conditions,what are the prerequisites for a company to make a profit for five consecutive years without being distributed? If the company does not convene a shareholder meeting to make a clear decision,how can shareholders exercise that right? Fourth,how to judge whether the transferred property belongs to the company's main property? What are the criteria for measuring major property? Fifth,how to determine a reasonable price for the company to repurchase shareholders' equity? Sixth,What is the result of the court's decision outside the legal situation? If shareholders' claims are supported,what are the reasons for it? If not,what are the reasons for adoption?Based on theoretical research and drawing on foreign legislation,the author puts forward suggestions for improving the above issues.Regarding procedural issues,this article proposes standardized procedures,including the company's performance of its notification obligations,shareholders' written objections and stated their attitudes at shareholders meetings,and written repurchase requests.Regarding the subject of the appraisal right,it cannot be simply assumed that anonymous shareholders and successor shareholders do not enjoy the right,and should be analyzed in accordance with specific circumstances.The non-voting shareholders should enjoy the appraisal right.Regarding the statutory application of non-distributed profits for five consecutive years,it is not that the shareholders 'meeting could not be held due to the shareholders' own reasons,and the prerequisites for presuming that the shareholders have exercised this right have been met.In addition,the judicial interpretation can be used to change the "five consecutive years" rule to "accumulated five years".Regarding the identification of "main property",a comprehensive analysis should be combined with the "quantity" and "quality" criteria.If the company transfers valuable assets to 50% of the total assets,the shareholders' objection can be determined to be valid.If it is difficult to arrive at a reasonable result based on the "quantity" standard,it should be combined with the "quality" standard.Regarding the determination of "reasonable prices",the company shall mainly determine through consultation with shareholders.If it is difficult to reach agreement through negotiation,the author proposes to determine the valuation base date for different repurchase matters,determine the company's net asset value,and determine the repurchase price inaccordance with the shareholder's equity ratio.For reasons other than legal provisions,expanded explanations can be taken,respecting the parties' autonomy,liberating the company's vitality,and safeguarding the legitimate rights and interests of minority shareholders.Moreover,in order to ensure the smooth application of this right,suggestions are made for the subject of the repurchase and the source of the repurchase funds.It is hoped that the perfect suggestions can enhance the applicability of the appraisal right and promote the company's operation and development.