On Articles 20 And 21 Of Judicial Interpretation Of Company Law(Four) From The Perspective Of Interest Balance

The provisions of "right of rescission" in articles 20 and 21 of the judicial interpretation of company law(four),the effective provisions of the contract of foreign transfer of equity in principle,and the provisions of other shareholders’ right remedy exercise period violate the idea of interest balance.The provision of "right of rescission" overprotects the transaction freedom of transferring shareholders,which is not conducive to the transfer shareholders’ realization of their own price interests,nor to the realization of other shareholders’ and the third party’s expected interests of equity;It has nothing to do with the combination of resources and is harmful to the combination of people.It is not only against the safety value,but also against the efficiency value.Due to the "subject to statutory conditions of performance" of the foreign equity transfer contract,the non-fault and non-recourse nature of the transferring shareholders,and the non-contingency nature of the transferring shareholders’ non-performance of the foreign equity transfer contract,the effective provisions of the foreign equity transfer contract in principle are obviously over protection of the interests of the third party,which damages the interests of the transferring shareholders.The provisions during the relief exercise of other shareholders’ rights not only make the approval procedure of shareholders appear to be invalid in the actual foreign equity transfer operation,but also conflict with the priority purpose of equity transfer stipulated in the articles of association in the company law,which damages the interests of other shareholders.The nature of shareholders’ pre-emption right should be defined as the right of formation.From the perspective of the combination of person and capital,the nature of the right of formation can reduce the infringement on the value of person to the minimum degree while protecting the value of capital.From the perspective of efficiency value and security value,the nature of formation right can not only promote the transaction safety and efficiency of transferring shareholders and other shareholders to the greatest extent,but also prevent the third party from entering the company,so as to protect the security and stability of the company.From the perspective of the interests of the three parties,the nature of the right of formation can prevent the two parties in the three parties from colluding to harm the interests of the other party to the greatest extent,and provide a fair and reasonable rule for the game between the three parties as far as possible.The effectiveness of foreign equity transfer contract should be analyzed according to the specific situation on the basis of establishing the principle of imputation based on fault liability.During the relief exercise of other shareholders’ right of pre-emption,the provisions should be made on the basis of considering the approval procedure of shareholders and the priority stipulated in the articles of association.