Research On Restrictions Of Shares Transfer In The Charter Of Limited Liability Company

Equity has the dual attributes of property rights and identity rights.Its transfer not only means the circulation of capital,but also change the shareholding structure and shareholder composition.Therefore,it is of great significance to a limited liability company with humanity and cooperation.China's new "Company Law" stipulates that "the company's articles of association have different provisions on the transfer of equity,compliance with its regulations " on the one hand,it gives the charter of the limited liability company more autonomy in equity transfer,which reflects the respect for the company's autonomy;on the other hand,because of the generality of the law and the diversity of the regulations and autonomy regulations,it has caused a lot of controversy.In the judicial practice,the different definitions of the limited liability company's restrictions on the transfer of equity transfer not only bring uncertain risks to the transaction between the company and the shareholders,but also make the judicial authority questioned and damage the judicial credibility.Through the combing of the existing theories and the specific investigation of the practical cases,this paper demonstrates in detail the theoretical basis and disputes of the limited liability company's articles of association restricting the transfer of equity and reveals the origin of the disagreement of the effectiveness determination,demonstrating the charter of the limited liability company.limiting the boundaries of equity transfer,and then put forward some suggestions for institutional improvement.This paper consists of an introduction,a body,and a conclusion,in which the body includes the following five parts:The first part of the text analyzes the theoretical basis of the restriction of equity transfer in the charter of the limited liability company,and concludes that the legitimacy of the charter restricting the transfer of equity is determined by the of the equity,the autonomy of the company's charter,the humanity of limited liability company and the relevant provisions of the Company Law,which lays a solid theoretical foundation for the subsequent arguments.The second part of the text analyzes the case in judicial practice,divides the limitation of equity transfer by limited liability companies into two categories: the restriction of the equity transfer between shareholders and the restriction of the equity transfer between shareholders and third parties.Through the integration of judicial practice,it clearly reveals the differenceand determination basis of effectiveness in limited liability companies.The third part of the text theoretically analyzes the root cause of the disputes of the limited liability company's articles of association restricting the equity transfer clause in practice.The fundamental reason for the limitation of the limited liability company's effect on the transfer of equity transfer is that the regulations restrict the multiple values behind the equity transfer.There are conflicts in principles,including the conflicts between the autonomy of the company's articles of association and the principle of free transfer of equity,the conflict between the meaning of the group and the individual meaning,the conflict between the capital majority and the protection of the interests of small and medium shareholders,and the conflict between humanity and cooperation of limited liability companies.The fourth part of the main body proposes to balance the conflicts between the above four value principles,it is necessary to scientifically and rationally delineate the autonomy boundary of the charter autonomy in limited liability companies.It also divides the boundary of the restriction of equity transfer from the abstraction and the specific two layers,and proposes that the restriction of equity transfer in limited liability companies need to comply with legitimacy and rationality,distinguishing transfer object.The fifth part of the main body put forward suggestions for the equity transfer system from pre-prevention and post-relief two perspectives.From the perspective of pre-prevention,it is necessary to establish a charter review basis to reduce the situation in which the law exceed the border restrictions on equity transfer,and introduce a charter to modify the defensive clause mechanism to protect the interests of minority shareholders from infringement.From the perspective of post-relief,it is necessary to appropriately expand the scope of exercise of the right of claim of dissident shareholders and improve the transfer price system to guarantee the relief channels of dissident shareholders.