Research On The Scope Of The Protection Of Shareholders’ Preemptive Rights By Indirectly Equity Transfer

Although the three-year-long case named Shanghai Bund Prime Site was resolved in the end of 2015,the thinking about the company law-related issue that the case left us did not end.The first trail treated the indirectly equity transfer as an invalid behavior that "performed under the guise of legitimate acts which conceal illegitimate purposes",the essence of which was to expand the scope of the protection of preemptive rights into indirectly equity transfer.The fact that whether this judicial intervention has a legal basis or whether fit the legislative intent makes people confused very much.It can be seen that the key to this case is to clarify the scope of the protection of shareholder’s preemptive rights by indirectly equity transfer,and the study of the case can not only provide a legal basis for future similar commercial transactions,but also promote the research on shareholder’s preemptive rights.This paper mainly divided into four chapters.Chapter One starts with the dispute of a famous case,and analyzes the judging reason in the first trail,which leads to the research issue about the scope of the protection of shareholders’ right by indirectly equity transfer.The question needs to be divided into three levels.In the first level,we should find out whether the indirectly equity transfer should be deemed as a behavior that "performed under the guise of legitimate acts which conceal illegitimate purposes".In the second level,we should find out whether the indirectly equity transfer should be deemed as a legal loophole to be filled and in the last level,we should find out how to protect other shareholders from being infringed by indirectly equity transfer of equity.The following three chapters is the detail discussion with these three partsChapter Two focuses on the indirectly equity transfer.Firstly,through defining and comparing the difference between the directly and indirectly equity transfer,we can understand the concept of the latter better.Secondly,by introducing the theory of Legal Personality and the theory of Bundled Assignability,we can find out that the equity is different from company property,which means that the property can be bundled assigned through the equity transfer.As a result of that,the businessman can transfer the equity without other shareholders’ consent in lower company.Finally,by listing the relevant cases both at home and aboard,we can find out whether the indirectly equity transfer should be deemed as a behavior that "performed under the guise of legitimate acts which conceal illegitimate purposes".Chapter Three is based on the method of legal doctrine,which analysts the scope of the preemptive rights as following steps.Firstly,according to the interpretation towards the existing legal provisions,we obtained that the formal meaning is more important than substantial meaning.Secondly,according to the interpretation towards the value orientation of the preemptive rights,we find out that the collaboration of human resource should be protected in a relative but not absolute extent.Finally,through the analysis of the legislative model and the evolution of the legislative model in China,we can find out that the protection attitude has changed from the commercial control to the commercial autonomy,as a result of which,we can make a conclusion that whether the preemptive right can be protected in indirectly equity transfer and than find the final boundary.Chapter Four discusses the protection path of the preemptive right in indirectly equity transfer.Firstly,by analyzing the existing problems in the Bund case,we try to obtain the correct protection path to solve the problem.Secondly,we can find out the specific application problem by combing the research status,we try to make sure whether there is still room for further discussion.The last part is the further discussion towards the specific application of the preemptive right.