Research On The Preemptive Right Of Shareholders In Limited Liability Company

The practice of company development shows that human cooperation is one of the most typical characteristics of limited liability company and the credit foundation of limited liability company.Therefore,the company law of our country has created many important systems to maintain the human cooperation of limited liability company.Among them,the system of shareholders’ preemptive right is created by the company law to protect the personal cooperation of the limited liability company.Its main purpose is: on the one hand,to maintain the stability of the company’s equity structure as much as possible by reasonably limiting the equity transfer behavior,on the other hand,to balance the interests of all parties through the element of "equal conditions".However,in practice,in the face of increasingly complex business environment,the system of shareholders’ preemptive right does not give full play to its due effectiveness,and even because these provisions of the company law are too principled and vague,the operability is poor,leading to ambiguity in judicial judgment.After that,the Supreme People’s Court issued the judicial interpretation of company law(4),which made up for the legislative blank of the system of shareholders’ preemptive right on the basis of company law and refined the relevant provisions of the system of shareholders’ preemptive right.However,the provisions are still weak for the complicated transactions in company practice.In November 2019,the Supreme People’s court made further provisions on the issue of equity transfer in the minutes of the civil and commercial trial work meeting of the national court,which first clarified the effectiveness of the transfer contract that infringes the preemptive right of shareholders.This not only provides important guidance for the judicial practice department to judge the cases of preemptive right of shareholders,but also provides guidance for this paper and the theoretical research The system of preemptive right in the East China Sea points out the direction.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is about the basic theory of the preemptive right of shareholders in limited liability company.Firstly,it introduces the connotation and nature of shareholders’ preemptive right;secondly,it discusses the function and value of shareholders’ preemptive right system;finally,it introduces the theoretical basis of shareholders’ preemptive right system,including the theory of expectant right,the theory of order maintenance and the theory of asset right;The second part is about the current situation and existing problems of the system of preemptive right of shareholders of limited liability companies in China.Firstly,it analyzes the legislative status of the system of shareholders’ preemptive right in China,including the relevant provisions on shareholders’ preemptive right in company law,judicial interpretation of company law(4)and minutes of civil and commercial trial of national court;secondly,it compares the trial results of controversial cases in judicial practice,and demonstrates the system of shareholders’ preemptive right Finally,it summarizes the problems existing in the legislation and practice of the system.For example: the subject of exercise is not clear,the obligation of notice of transferring shareholders is not specific,the standard of identification of the same conditions is not unified,and the rules of the exercise of the right of estoppel are not clear.The third part is about the legislative practice and Enlightenment of foreign limited liability company shareholders’ preemptive right system.This paper mainly selects Japan and France as the representatives of the civil law countries on the provisions of the system of shareholders’ preemption as the research object,focuses on the system design and judicial application of the two countries,after the comparison and analysis,summarizes the experience of the system of shareholders’ preemption in China.The fourth part is about the improvement of the system of shareholders’ preemptive right of limited liability company in China.Firstly,it is necessary to clarify the subject of exercise in the preemptive right of shareholders,such as the specific scope of "other shareholders" and increase the system of designated transferees;secondly,it is necessary to refine the notification obligation of the transferring shareholders in the preemptive right of shareholders,such as determining the subject of the notification,clarifying the way of notification and refining the content of the notification;thirdly,it is necessary to unify the recognition standard of the same conditions in the preemptive right of shareholders,such as clarifying the content of the notification The first consideration of the same conditions,the special consideration of adding the same conditions,the pricing method of the transfer of equity price;fourth,the exercise rules of the right of Estoppel in the preemptive right of shareholders,such as the establishment of conditions for the exercise of the right of estoppel,the provisions of the exercise period of the right of estoppel.