Reconstruction And Improvement Of The Restriction Model Of Equity Transfer Of Limited Liability Companies In My Countr

The Company Law sets out a “double restriction mode” consisting of shareholder consent restriction and shareholder’s preemptive right in relation to the external equity transfer of the limited liability company.If the transferring shareholders strictly follow the rules,the equity transfer process will be longer and less efficient;if they simplify the rules by themselves,a deviation from legislation in the practice will be caused.This paper aims to solve this problem and try to optimize the external equity transfer process with a purpose of improving the efficiency of commercial transactions.To this end,this paper analyzes the necessity and feasibility of rebuilding the restriction rules and suggests the reconstruction path and specific suggestions.Regarding the necessity of the reconstruction,this paper points out that there are many problems in the “double restriction mode”,including: the overlapping of the effect of the consent restriction and the preemptive purchase restriction but the contradiction in the result,the impracticability of isolating the two restrictions.Due to incompleteness of the consent restriction,this restriction can neither prevent the external transfer of equity,nor trigger the compulsory purchase obligation of the opposing shareholders.Considering the above problems,this paper believes that it is necessary to optimize the“double restriction mode”.This paper demonstrates the feasibility from the practical basis and the theoretical basis.From a practical perspective of view,by analyzing the sample cases,it is noted that the parties all simplify the “double restriction mode” in practice,and the court has no objection to this.One of the legislative purposes of the “double restriction mode” is to maintain the compatibility of shareholders,but when other values such as the efficiency of equity transfer conflicts with the compatibility of shareholders,the court will not give priority to protecting it.It can be seen that the recognition of the “double restriction mode” shows a trend of weakening Theoretically,a limited liability company is essentially a joint venture with corporate capital as its credit basis,and with the increase in the number of shareholders in a limited liability company in recent years and complexity of the types of shareholders,its compatibility of shareholders has gradually been weakened.At the same time,shareholders know better of whether and to what extent the company is compatible.In the context of corporate autonomy,the company’s articles of association can provide for restrictions on the external transfer of equity.It is not appropriate for legislation to provide such strict and complicated arbitrary provisions.By analyzing the comparative law experience in Chinese Taiwan,South Korea,France,Japan and Chinese Macao,this paper argues that for China,it is a more ideal priority to simplify the limitation on external equity transfer of limited liability companies to a sole preemptive right restriction.Aiming the disputes about the preemptive right in practice,this paper raises the following specific suggestions for improving the preemptive right system:first,it should be clarified that if the other shareholders do not claim the preemptive right within the specified period or only claims it without actual purchase,it would be deemed that they have waived such right.Second,when the other shareholders have objections to the conditions for the external transfer of equity,an evaluation should be introduced to improve the price formation mechanism in the rules of the preemptive right,to make up for the original purpose of the “double restriction mode” intends to achieve but fails to do so.Third,on the premise of ensuring under the premise of ensuring legality and rationality,the advantages of autonomy should be fully respected,and the articles of association should be allowed to make restrictions different from the relevant arbitrary rules in the Company Law.