Research On The Restriction Of Equity Transfer In Limited Liability Companies In China

With the rapid development of my country’s market economy,the liquidity of economic factors has continued to increase.As an important property right,company equity has also shown strong liquidity.my country’s "Company Law" provides for the transfer of shares in limited liability companies,inward transfer and outward transfer.Among them,the principle of free transfer is the principle of inward transfer of shares;and the principle of “shareholders’ consent” is adopted in the outward transfer of equity."Restriction rules co-existing with the right of first refusal.In practice,the restrictions on external transfers have not been implemented well,because most people believe that the shareholder consent system does not actually restrict whether the equity can be transferred outside the equity transfer process,and the equity transfer is successful.The decisive factor is whether other shareholders exercise the right of first refusal.The theoretical and practical circles have been investigating this issue and making relevant suggestions.Although the 2005 "Company Law" added restrictions on the transfer of equity in the articles of association,the blurring of the boundaries of the regulations resulted in large differences in actual operations.To this end,the Supreme People’s Court issued the Provisions(4)on Several Issues Concerning the Application of the“Company Law of the People’s Republic of China” issued in September 2017,and the“Minutes of the National Court Civil and Commercial Trial Work Conference” issued in November 2019.The applicable rules for the issue of equity transfer have been further refined,but unfortunately the adjustment of the dual restrictions on equity transfer and the improvement of the restrictions on the articles of association,which are generally concerned by the theoretical and practical circles,have not been involved.In view of this,this article takes the issue of limited liability company equity transfer restrictions as the research object,and aims to put forward suggestions for further improving my country’s limited liability company equity transfer restrictions system through the research and analysis of my country’s current equity transfer restrictions legislation and practice.In addition to the introduction and conclusion,this article is divided into four parts.The first part is about the basic theory of the limitation on the transfer of shares of limited liability companies.First,it introduces the concept and characteristics of equity transfer,the connotation and necessity of equity transfer restrictions,and the regulatory principles of the "Company Law" on equity transfer,such as maintaining the company’s human integrity,ensuring the transferability of equity,and respecting shareholders The meaning of autonomy and protection of the interests of small and medium shareholders.Secondly,it analyzes the legal basis of equity transfer restrictions from the aspects of the company’s humanity,the attachment of equity and the value of equity control,which lays the foundation for more in-depth research.The second part is about the current status and existing problems of the legal regulations on the limitation of the transfer of shares of limited liability companies in our country.Mainly through the analysis of the current situation of the legal and practical aspects of the restriction on the transfer of equity of a limited company in my country,it is pointed out that the degree of maintenance of human compatibility,the internal conflict of the dual restriction rules,the boundary of the restrictions on the bylaws,and when the equity transfer violates the restrictions on the bylaws The issue of effectiveness has four levels.The current equity transfer restriction system has problems,which require further and in-depth research.The third part is about the legislative practice and experience reference of the restrictions on the transfer of foreign equity.First,analyze the legislative practice of the civil law system and the common law countries on the equity transfer restriction system.For example,the single-tier restriction rule of the shareholder consent system in Japan improves the efficiency of shareholder transfer of equity,and the United States Constitution restricts the "reasonableness" standard in equity transfer.Make the restrictions on equity transfer in the articles of association clearer.Secondly,it summarizes the share transfer restriction system of the above-mentioned countries,and points out the beneficial experience of my country’s share transfer system,such as: concise restriction legislative thinking,effective shareholder consent system,complete designated assignee system and clear charter restriction system Wait.The fourth part is about the suggestions on the improvement of the legal regulation of the limitation of the transfer of shares of the limited liability company in our country.First of all,on the issue of the balance between the company’s humanity and equity transferability,it is necessary to correct the traditional theory of humanity and establish a balance rule that prioritizes the freedom of equity transfer.Secondly,in order to correct the deviation of the dual restriction rules for equity transfer,it is necessary to establish the principle of equity transfer contract first,while simplifying the transfer shareholder notification procedure,pre-empting other shareholders’ right of first refusal,deleting the transfer shareholder’s "right to regret",and improving the efficiency of equity transfer.Third,in order to clarify the boundaries of the bylaws restrictions,the US’s "reasonableness" review principle was introduced,while at the same time retaining channels for shareholders to withdraw,and perfecting the bylaw registration review system and other oversight mechanisms.Finally,in the determination of the effectiveness of shareholders’ violation of the articles of association to restrict external transfer of equity,highlight the protection of the interests of third parties other than shareholders,and distinguish the effectiveness of equity transfer agreements and equity changes.