A Study On The Compulsory Transfer Of Shares By Amending The Articles Of Association Of A Limited Liability Company

Due to the small number of shareholders,in order to protect the stability of member relationships,limited liability companies have a need to restrict the disposal of equity,and the special needs of such companies are also respected by law.A common restriction measure is to add a "compulsory equity transfer clause" in the company’s articles of association,which requires shareholders to transfer their shares to the company when they leave the company.Shareholders may vote against this in order to avoid restrictions on the disposal of equity,or face the dilemma of deprivation of equity in the future.At this time,how to determine the legal effect of amending the relevant articles in the articles of association,how to remedy minority shareholders,judicial practices vary,and theoretically there is no dispute.To this end,this article attempts to propose a corresponding solution based on the analysis of the legitimacy of the interests of both parties to the conflict by means of benefit measurement.In addition to the introduction and conclusion,this article is divided into five parts:The first part: raising the question.Through the analysis of the three sample cases,it is pointed out that the current judicial judgment has inconsistent judgment methods,conflicting value judgments and solutions in the face of the limited liability company’s effectiveness judgment and minority shareholder relief issues by modifying the articles of association.Single issue.The second part: point out the limitations of the current theoretical interpretation method adopted by the thesis research in this article,and advocate the analysis of the method of benefit measurement.The paper points out that the essence of the aforementioned problem is that there is a conflict between the shareholders ’right to dispose of the shares and the company ’s interests in compulsory share transfer.The analysis methods traditionally used include interpretation methods based on effectiveness judgment and interpretation methods based on the nature of the charter,but The theoretical disputes between the two are relatively large,and they are ultimately resolved in a valid and invalid manner in the relevant articles of the charter,making it difficult to respond to the demands of all parties.Relatively,there is a certain degree of fit between the measurement of interests and the thesis of this article,which can be used as a basic method for studying the thesis of this article.The third part: Analysis of the legitimacy of compulsory equity transfer by the company to amend the articles of association.The thesis analyzes from two aspects of form and substance legitimacy.In the former,the capital majority principle on which the constitution is amended,as well as the resolution rather than the nature of the legal action that it possesses,can justify the form of amendment of the constitution;in the latter,the mandatory equity transfer clause established by the constitution is amended,Its function is recognized by judicial practice,and if the amendment of the constitution is to realize the interests of the company as a whole,in fact it meets the theoretical substantial requirements for the amendment of the constitution.At this time,the content of the amendment of the constitution can be deemed to be substantially legitimate.The fourth part: Analysis of the legitimacy of the protection of the rights of minority shareholders.The thesis points out that the stock right disposal of a limited liability company is not free in itself,and the key to the problem lies in determining the boundaries of the constitutional intervention in stock right disposal.Based on the property rights of equity,we can see that the limit lies in guaranteeing the shareholders’ right to withdraw and the realization of the transfer consideration.If the consideration stipulated in the compulsory equity transfer clause is unreasonable,it may touch the above boundary.At this time,most shareholders violate the obligation of fair treatment to minority shareholders when exercising their rights,which constitutes abuse of rights.Relief.The fifth part: Benefits measurement and solution proposal.On the one hand,in the value judgment,by assuming the possible costs of the two rights arrangements and comparing,it can be seen that the interests of the company should be the priority protection object;on the other hand,as for the result of discretion,the amendment of the charter should be ensured first The procedures and content of the law are legal in order to curb the abuse of capital majority.At the same time,it is necessary to distinguish the specific reasons for minority shareholders’ departure and to investigate whether there was a fault at the time of departure.On this basis,the company is required to repurchase the shares of shareholders without fault at a reasonable price,so as to achieve a balance between the interests of the company and minority shareholders.