Research On Share Transfer Restriction Of Limited Liability Company In China

The restriction system of share transfer has always been an issue that must be examined in the dispute of share transfer,so its importance to share transfer is self-evident.However,in the face of the rapid development of the market,the restriction system of share transfer constructed by Chinese legislation in the early period is not enough to meet the current efficient and diversified demand for share transfer,and there are many unreasonable problems in the legislative system.Taking article 71 of the company law as the core,this paper introduces the theoretical basis and basic contents of the current restriction system of share transfer,and analyzes the problems still under dispute in the academic circle.The problems focus on the following five aspects: first,the academic circles view that there is a duplication between the consent restraints and the shareholder’s preemption value,and that consent restraints can be replaced by shareholders preemptive right point of view.But the author thinks that the reason is that the consent restraints in the mode of individual decision of shareholders causes the absence of the main body of the company,so that the value of the independence between the consent restraints and the preemptive right of shareholders is not found.Therefore,the paper puts forward the suggestion of affirming the independent status of the company in share transfer and returning to the decision-making mode of the company organs.The transfer of equity is not only the behavior of the shareholder to transfer the property,but also the behavior of the shareholder to quit the company and lose the shareholder qualification,and the behavior of the new member to join the company and obtain the shareholder qualification.So the main value of the consent restraints is to review new members,and the company is the only authority.Secondly,it is generally believed in the academic circle that the reason why shareholders enjoy the preemptive right is to maintain the compatibility of shareholders,but the author holds the opposite opinion,Because in the consent process,the shareholders have assessed and judged the influence of the transfer of equity rights on the shareholders’ relations by means of majority decision.Therefore,other shareholders exercise the preemptive right based on their own interests and fear that the company might be taken over by someone else thus negating the arrangement of shareholders’ collective.Thirdly,in view of the current dual restriction system,the content of notice is vague and inefficient,The author thinks that it should not be divided into two independent notices.The first notice should contain the shareholders’ intention to transfer,and the second notice should contain all the transaction conditions of the share transfer contract.Fourthly,for the legal effect of share transfer restriction system on share transfer contract and equity change,the academic circles have formed many different theories.The theory of validity is adopted in this paper to understand the relationship between the share transfer contract and the share transfer restriction system,and the successful transfer of equity through the share transfer system is considered as one of the essential conditions of equity change.This is because the theory of validity divides the behavior of share transfer into contract effectiveness and performance,and argues that the effectiveness of the contract does not bring about the inevitable performance of it.This view not only follows the general rules of the judgment of the effectiveness of the contract,but also is more equitable in balancing the interests of the transfer shareholder,other shareholders and the third party.Equity is a concept relative to a company,and after the change of shareholders’ qualification,the third-party can claim shareholders’ rights to the company.The external manifestation of whether the company agrees to the change of shareholder qualification is whether the share transfer has passed the share transfer restriction system.Therefore,if it has passed the subsequent registration of shareholder change,it is only the external declaration of the company that the transferee has shareholder qualification.If it is not approved,it indicates that the company does not recognize the change of shareholders’ qualification,and the company has the right to refuse to handle the change of shareholders’ registration.The theory that the stock right changes after the behavior of shareholder notification and registration all ignore the fact that the matter of stock right transfer has passed the restriction system of stock right transfer.Finally,in view of the mandatory purchase system of dissenting shareholders supported by legislation,the author believes that this system ignores the real idea of dissenting shareholders,and makes shareholders fall into the situation of either agreeing or buying.It can neither maintain the cooperation of shareholders nor give play to the other value of equity.The real dissenter is not the shareholders but the company,and the company should be responsible for its opposition.Therefore,the author introduces the system of corporate repurchase and the third party’s purchase of stock rights in order to improve the current legislation.