Comments On The Effectiveness Of Equity Transferring Contract When The Transferring Shareholders Are In Violation Of The Preemptive Rights Of The Company Law

The article 71 of the Company Law only stipulates that shareholders transfer its equity to the third party outside shall fulfill their obligation to notify the company and other shareholders have the preemptive rights.However,there is no any further provisions about the contract effectiveness when transferring shareholders are in violation of the article 71 of the Company Law.For a long time,there have been many opinions among the field of practice and theory,including:(1)invalid theory;(2)validity theory;(3)revocation theory;(4)effective theory;(5)the mixed theory of stages.How is the equity transferring contract effectiveness,which is in violation of the article 71 of the Company Law?In essence,it is the argument of the "oneness" or "dichotomy" of the burden behavior and disposition behavior under the legal system of our country.Furthermore,it relates to the discussion on the time point of the shareholding change in the limited liability company.The shareholders' preemptive right has no effect on the validity of the equity transferring contract.For the burden behavior is distinguished from the disposition behavior,no matter how effective the equity transferring contract stipulated in the article 71 preemptive right clause of the Company Law is violated,it will not prevent other shareholders from exercising the preemptive rights.It is not necessary to restrict or even deny the effectiveness of the transferring contract on the grounds of protecting the shareholders' preemptive rights.On the contrary,acknowledging that an equity transferring contract between the transferring shareholder and a third party outside is effective not only fits more closely with the actual operation of the shareholders'preemptive rights,but also can motivate the transferring shareholder to be more respectful and to safeguard the rights of other shareholders by promoting the protection of the interests of third parties outside.From the provisions of the Property Law,it can be inferred that the change of registration for industrial and commercial administration is the form of delivery of the equity of a limited liability company.However,this conflicts with the "registration confrontation" provisions of the Company Law.Changes in equity under the current legal system should be notifying to the company and obtaining other shareholders' consent as the effective standard.Specifically,after the equity transferring contract signed between the transferring shareholder and the third party takes effect,the transferring shareholder should notify the company and any other shareholders.When the company's shareholders agree and no shareholder exercises the preemptive right,the equity will be delivered and the third party obtains the shareholder qualification.