The Effectiveness Of The Forced Equity Transfer Clauses In The Articles Of Association Limited Liability Company

In order to retain the core technology,the officer or the personresponsible for the limited liability company,the limited liability company will agree in the initial or constitutional amendment that "in the event of a certain situation,the shareholder shall charge his shares to other shareholders or company " similar terms,this is the compulsory transfer of equity terms,are equity transfer within the transfer.In commercial practice,there are two types of compulsory transfer of shares: non-price terms and price terms.The non-price terms refer to the terms of the particular subject matter of the transfer of the shares agreed upon by the shareholders in the articles of association;the price terms refer to the terms of the transfer price when the equity is agreed upon to the company or other shareholders.Ownership of a limited liability company The compulsory transfer of shares is derived from the change of shares.In the early 1990 s,China established the employee stock ownership system in the state-owned enterprise’s stock cooperative system reform.The former state-owned enterprises in the restructuring of the company’s shares held by the company’s shareholders.But some of the shareholders are mainly the company’s executives and technical staff for their own interests,after becoming a shareholder of the company for various reasons to leave.After the resignation,the original enterprise employees,or engaged in other industries or in violation of the company’s rules and regulations,engaged in similar or similar business with the company.In order to safeguard the interests of the Company and other shareholders,the Company stipulates that the Shareholders must transfer their shareholders to other shareholders or companies.This model is the holding system,shares with the post system,people take the system.This measure is intended to constrain the resignation of shareholders,to maintain the limited liability of the company and the interests of the company and shareholders to maximize.This is the initial share of the system with the change,after the evolution of the limited liability company at the time of incorporation in the statute agreed in the event of a certain situation,the shareholders must transfer their equity to other shareholders or companies,or during the company’s duration By amending the articles of association,the compulsory equity transfer clause is provided for in the amendment to the constitution.There are two cases in which the compulsory shareholder transfer clause is stipulated in the amendment of the constitution: first,when the specific circumstances of the shareholders are changed,the company shall amend the articles of association to stipulate the terms of the equity transfer,which is aimed at the specific shareholders;the second is that the company does not target the specific shareholders,In order to prevent the shareholders from leaving the stock during the existence of the company,the amendment of the constitution to the shareholders of the restraint.Article 72 of Article 4 of the Company Law of the People’s Republic of China has given the right to make "additional provisions" on the equity transfer of the limited liability company,but the validity of the articles in the judicial trial has been debated,and the legal and practicing circles There is no consensus between the consensus.Limited Company to amend the Articles of Association in the course of the amendment,in the amendment to the provisions of the shareholders in the event of a specific circumstances to transfer the terms of the shares,the validity of the terms,especially for dissenting shareholders of the binding and relief issues worthy of attention.There are three views on the effectiveness of the clause: First,the effective said.The provisions that the provisions of the company’s articles of compulsory equity transfer of all the shareholders of the legal effect;Second,the invalid said.The provisions that the provisions of the company’s articles of compulsory equity transfer of all the shareholders do not have legal effect;Third,the distinction between that.The price of the provisions of the company to consider the provisions of the terms of the equity transfer of the terms of the dissenting shareholders invalid,non-price terms of all shareholders effective.Limited liability company charter compulsory equity transfer clause,especially the amendment to the charter of the compulsory equity transfer terms also related to the principle of equality of shareholders and capital majority principle,the principle of capital majority and the principle of free transfer of shares between the principles of several conflicts.During the period of the Company,the Company amended the Articles of Association to enforce the compulsory equity transfer terms,especially when the controlling shareholder had used the capital majority decision to violate the interests of the minority shareholders.To discuss the validity of the articles of incorporation under the articles of association of the limited liability company,in particular the effect of the compulsory amendments on the exclusive rights of the shareholders,one is the need to define the nature of the equity.Ownership is divided into the inherent and non-permanent,for the inherent right,if the shareholders do not agree with the case,can be deprived of the constitution,it is worth considering.Second,the need to define the nature of the articles of association,and the initial statutes and amendments to the statute of the legal analysis.It is clear that the equity of the Company is divided into the reserve right and the non-reserve right;after the existence of different legal principles between the initial charter and the amendment of the company,the validity of the compulsory equity transfer clause of the limited liability company can be determined.Through the analysis we can see that,based on the different legal principles of the initial charter and the amendment of the articles of association of the limited liability company,the articles of association should be distinguished.(2)The disposition clause(especially the price clause)of the equity transfer in the amendment to the articles of association does not take effect on the principle of dissenting shareholders and the effect on the consent of the shareholders.To distinguish between the types of articles of association on the effectiveness of the terms of the transfer of shares have the following meaning: First,the distinction between the theory of law There is no obstacle to the company’s charter and the validity of the terms of the compulsory transfer of shares;Second,the distinction between the company’s Interests and the interests of dissenting shareholders to balance;Third,the distinction between the discussion can be achieved with the real implementation of the system with the change,and the withdrawal of shareholders can be carried out when the protection.