| Article 74 of the Company Law stipulates the right of claim for share repurchase of dissenting shareholders of a limited liability company,but there are some obstacles in judicial application because of the rough legislation.In addition to exercising the right of claim for share repurchase of dissenting shareholders according to the three legal situations stipulated in Article 74 of the Company Law,there are a large number of cases that are not brought on legal grounds in practice.Based on the statistical analysis of such cases,it is found that the paths of court decisions are different,and some of them are even quite different.To sum up,there are mainly the following disputes: the lack of a unified standard to determine what is the main property transfer of the company,how to determine that a profitable company does not distribute profits to shareholders for a long time,and how to determine the reasonable price of share repurchase.By summarizing the judge’s viewpoints of the court and combining theories and foreign experience,puts forward the following viewpoints and suggestions: first,comprehensively consider whether the transfer of property is the core asset of the company’s routine operation,the proportion of the property to the company’s assets,whether the transfer of property substantially affects the purpose of the establishment of the company and the survival of the company,and whether it affects the normal operation of the company;second,the company has distributable profits for five consecutive fiscal years without distribution.After exhausting the shareholders ’ means,the company cannot reach a profit distribution plan with shareholders,it is can be regarded as a profitable company without long-term distribution of profits to shareholders;third,when determining the price of share repurchase,in the aspect of the initial subject,the judge should first examine the rationality of the share repurchase price advocated by the dissenting shareholders and the company,and choose one as a reasonable price.If the above price is considered unreasonable,the judge should be assisted in determining the reasonable price according to the opinion of the professional evaluation intermediary or the accounting expert hired by the court.In terms of the evaluation method,when the share has a market price,it should be determined with reference to the market price,otherwise it should be determined according to the net assets of the company.In the face of rapidly changing commercial activities,the current legislation is obviously notenough to regulate the endless disputes over the acquisition of shares in limited liability companies.It is necessary to sum up the problems and useful experience in practice and provide a new thinking path for the adjudication of such cases. |
