Research On The Confirmation Rules Of "Equal Conditions" In Equity Transfer

While emphasizing the maintenance of the company’s human nature,it should also consider its capital,and only consider the design of equity transfer restrictions to maintain and improve the human nature,ignoring its negative effects.Therefore,an orderly exit path should also be provided for transfer shareholders.In view of the backwardness of corporate governance in China’s commercial practice,most company articles of association do not make provisions for equity transfer or directly copy the content of the first three paragraphs of Article 71 of the Company Law to the company articles of association.Therefore,the first three paragraphs of Article 71 of the "Company Law" have an important role in dealing with disputes over the external transfer of equity.Shareholders ’preemptive right,as a choice of the legislative model in China’s "Company Law" that restricts the transfer of equity in limited companies,should strike a balance between guaranteeing shareholders’ return on investment benefits and maintaining the company’s human nature."Equal conditions" are the core requirements for the exercise of shareholders’ preemptive rights.The system design assumes the function of balancing the interests of all parties.It must protect the company’s human nature and ensure the normal circulation of equity.Although Article 18 of the "Company Law Interpretation(4)" stipulates that the people’s court judges whether it meets the "equal conditions",it is only an inductive expression of the type of factors considered for the "equal conditions" and does not touch on the substance of the "equivalent conditions" The rules still cannot effectively resolve disputes arising in practice.After a lot of empirical analysis,it is found that in the current judicial practice,the "equivalent conditions" are recognized under the four different types of treatment of payment by the external assignee who fully pay the price,pay the price,and perform the payment obligations,reciprocity,and free transfer There is a dilemma.The main manifestations are: in the case of free transfer of equity,whether other shareholders enjoy preferential purchase rights is controversial;and in cases of malicious collusion,equity replacement,etc.,when the transfer shareholder and the shareholder exercising the preferential purchase rights are difficult to reach agreement on the exercise price,the equity is involved There is no basis for the determination of the same price conditions for the transfer of the substantial interests of the parties.Based on the literature analysis method,comparative analysis method and case analysis method,it systematically sorts out and constructs the related basic theories of "equal conditions" and puts forward suggestions for improving the types and specific identification rules of the "equivalent conditions"."Equal conditions" refers to the transfer shareholder’s notification of the equity transfer matters,and the transferee’s non-shareholder transferee’s commitment to fulfill the same obligations or equivalent to the transfer of shareholders based on the expected benefits of the equity transfer of reasonable conditions.With regard to the number of shares,except for the transfer of shareholders and the consent of the third party,no other shareholder may claim partial preemptive rights.For the payment method and duration of the equity consideration,one-time payment should pay attention to the difference between cash and transfer payment and other payment methods such as bills;in installments,on the premise that the term benefit is not better than that of an external third party,the right to buy first Shareholders should also provide corresponding guarantees.In the case of unpaid transfer,equity replacement,etc.,if the parties cannot agree on the price of the equity to be transferred,the price should be evaluated by a third-party equity evaluation agency jointly designated by the two parties or entrusted by the people’s court,which is regarded as the same price condition for the preemption right..If the price of the transfer of equity notified by the transfer shareholder exceeds 50% of the price assessed by an equity assessment agency not related to the company,other shareholders of the company hold the objection,except for the transfer shareholder who gives up continuing the transfer,they are entitled to the price obtained by the evaluation add 30% price to get the relevant shares.On the basis of the three common factors listed in the existing norms,such as the number of transferred equity,price,payment method and duration,the scope of consideration factors should also be reasonably extended,including from the obligation to pay and close relatives.Whether the payment obligation is regarded as a consideration factor should be based on not stipulating whether the obligation will affect the conclusion of the contract for the external transfer of equity and the transfer of the substantial interests of shareholders.At the same time,the obligatory payment obligation should allow the replacement of performance by means of monetary compensation.Since the close kinship is an externalized form of emotional benefit,it can be regarded as one of the considerations,but the scope of the close kinship should be limited to the family relationship of parents,spouse,and children.In addition,the embedded emotional interests should allow other shareholders to substitute the payment of the performance,and the exercise price of other shareholders should be higher than the purchase price of the close relatives.