The Analysis Of Shareholder's Preemptive Right In The Transfer Of Equity Of Limited Liability Companies

A limited liability company is a relatively large proportion of various forms of enterprises in China.The advantage of this type of enterprise is that it has flexibility in management freedom,and shareholders have limited liability,so most SMEs will choose Limited liability company's organizational form.The vast majority of limited liability companies are characterized by small scale and a relatively small number of shareholders,so they are human.Under the principle of free transfer of stock rights,in order to protect the humanity and closure of limited liability companies,equity transfer methods with certain restrictions will be adopted,that is,giving other shareholders the right of first refusal.The provisions of the “Company Law” on shareholder's right of first refusal are relatively general,which results in the vague deficiencies in the application of the shareholder's right of first refusal system in judicial practice and fails to meet the needs of complex dispute resolution in judicial practice.The academic community has always been divided about the nature of the right of pre-emption of shareholders of limited liability companies.The mainstream view of the academic circle in the past was "formation of rights",but the relevant provisions in the "Judicial Interpretation of Corporate Law(4)" are more inclined to request the right of preemptive right.In fact,the right of preemption in the nature of claims can better balance the relationship between the transferor and the assignee.It can also provide legal basis for the right to repentance provided for in the Judicial Interpretation of Company Law(IV).The issue of the conditions for the exercise of the right of preemption by shareholders of limited liability companies has often been plagued by judicial imperfections because of legislative deficiencies.Therefore,the specific issues involved in the exercise of conditions should also be clearly defined through legislation.For example,the scope of the main body of shareholders' right of preemption should not be just dissenting shareholders,but should include all other shareholders.The "equivalent conditions" of shareholders' right of first refusal should also include conditions that can materially affect shareholders' right of preemption.Partial exercise of the right of first refusal is unreasonable.The exercise period and notification obligation of the shareholders' right of pre-emption have alsogiven them new connotations in accordance with the provisions of the Judicial Interpretation of the Company Law(IV).The "Judicial Interpretation of Company Law(IV)" introduced the system of preemptive rights for shareholders of limited liability companies to further refine and improve the system,so that the system of preferential rights for shareholders of limited liability companies can have richer connotations and cater to judicial practices.The needs of various complex situations to achieve their due value goals.