The Study On The Confrontation Of Shareholder’s Preemptive Right

Limited liability company first appeared in Germany legislation in1892, toremedy the system deficiency of the stock company and partnership, with doublecharacteristics of capital joining and human joining.The shareholders preemptive emphasizes that shares transfer must, to someextent, be limited, balancing the interests of all parties in equity transfer, andmaintaining the control of company. Our country’s new Company Law makes aproper restrictions on the external transfer of equity, maintaining a free flow ofcompany equity and human joining. But with the mature of modern company systemand market-based resource allocation, limited liability company’s equity transferbehaviors become more and more common and frequent. Relevant disputes aregrowing, especially the execution of shareholders preemptive. However, the new"company law" in China still stays on the principle level, lacking of specificprocedures, legal relief, reasonable ways against such problems. In China, theresearch of the nature of the shareholders preemptive right, and the effectiveness ofshareholders equity transfer contract is rather poor, leading to large numbers ofdisputes. So a thorough and rational study about shareholders preemptive right isnecessary, The author tries to explore these problems, hoping to provide beneficialhelp.This article analyzes shareholders preemptive right following the reasonable andunreasonable confrontation against shareholders preemptive right. The article pointsout that limited liability company’s human joining and capital joining makes up itslegal basis; The value of shareholders preemptive right’s system value is to balancethe interests of all parties, maintaining the company’s stability; Shareholderspreemptive right shall be defined as creditor and formation right. In terms of theunreasonable confrontation, according to the article, constitutes the violation ofpreemptive right. When a third person is involved in the former situation, the contactshould be effective. The victim shareholder could claim either tort liability or contract liability. Finally, the article puts forward the mode of reasonable confrontation ofshareholders’ priority right, including adding relevant provision in the articles ofcorporation, the majority rule, absolyte equal condition, or holding the deficiency ofimplementation ability as reasons to hold against the shareholders’ preemptive right.