Study Of Exercise Of Shareholder’s Pre-emptive Rights Of Limited Liability Company

The game of the character of personal joint and character of capitals joint of the limited liability is fully played.Today is still the hot topic in the theoretical circle,and about preemptive rights disputes occur constantly in practice too,the courts have different criteria for dealing with the same issues,the same cases of different judgements continue to occur.Company law requires more detailed regulation of the system..This article is divided into five parts.Judicial interpretation The provisions of article 71 of the company law on the right to preemption are too simple,preemptive disputes often arise in situations that cannot be relied upon in practice.The fourth part of the company judicial interpretation provides supplementary provisions on the procedures and remedies for the exercise of the system of preemptive right of shareholders,many problems remain unresolved.The author will study the shareholder’s preemptive right dispute in judicial practice and summarize the litigation problems arising from the exercise of the preemptive right of shareholders.In combination with relevant theories and relevant laws,the author will discuss the issue of the exercise of preemptive right of shareholders,expecting to give advice to better exercise the preemptive right.Adopting the method of empirical analysis of the first part mainly,the author analyzes the disputes arising from the exercise of the preemptive right of shareholders in practice.The present situation of the system of preemptive right is expounded.By analyzing the data and summarizing the focus of the court trial,we can get the problem that the shareholder’s preemptive right is exercised in practice.The subject of exercising the right,defective shareholder and the actual contributor is disputed in practice.Some courts are inconsistent with the standard of the same conditions,adopting absolute and relative standards.In terms of the content of the same conditions,only the relevant elements are enumerated,and no further discussion is made.In relation to the emotional factors of personal relationship and the equity transfer under special reasons,it is different to know whether the right holder can exercise the preemptive right.There are different understandings of the content and means of the notification obligation in the procedural requirements,and different views on the duration of the exercise of rights.Whether the articles of association of the company can be restricted or excluded from different views.The second part mainly combines theory and law to analyze the main elements of exercise.Through theoretical and practical analysis,it is concluded that the majority of shareholders agree that other shareholders have the preemptive right of shareholders.No other shareholder has the qualification to file a lawsuit,the actual investor does not have the subject qualification,and the defective capital contribution shareholder has the subject qualification in the absence of unlimited company constitution.The articles of association shall not limit the subject qualification.The third part mainly studies the essential elements of the limited purchasing power system.The following conclusions are drawn from the analysis: the same conditions are generally conditional on absolute standards,and the special cases adopt relative standards.The factors that have special emotional relationship do not act as the obstacles to the exercise of preemptive right of shareholders,and use the market price as the price of equity transfer;The provisions of the articles of association shall not be excessively lower than the content of the equity transfer agreement.The fourth part analyzes the procedural requirements of the shareholder’s preemptive right.The method of notification in practice is not limited to the form of written notice,and it is also deemed to fulfill the notification obligation in other ways that can achieve the notification effect.Analysis of time limit for practice court decided that the district court of guidance and reference to foreign relevant provision,summed up the fourth part of the company judicial interpretation about the provisions of the deadline with rationality.The articles of association may properly limit or exclude the right of shareholders to purchase,but cannot prohibit the transfer of shares.The fifth part mainly discusses the suggestion to improve the exercise of rights.The exercise of the preemptive right of shareholders will affect the interests of the three parties.When the interests of one party are damaged,the law shall stipulate corresponding protection measures to meet the legislative purpose of preemptive right.On the basis of the relief measures stipulated in the fourth part of the company judicial interpretation,the article puts forward more detailed and perfect Suggestions.To establish a more perfect mechanism for accountability,and to pursue joint and several liability when transferring shareholders and non-shareholders to malicious collusion.The contract effect of the transferee and non-shareholder is affirmed and the liability for breach of the contract shall be investigated.Introduction of the guarantee system,the transfer of shareholders may request other shareholders to provide property guarantee.The non-shareholder assignee may refer to the warranty of rights flaw.Refine the rules of the right to reverse.