Research On Applicable Laws And Regulations For The Penetration Of Shareholders’ Preemptive Rights

As a special form of organization,limited liability company has the characteristics of "human capital",which makes it different from partnerships,and has a certain positive significance for risk control.However,this characteristic also brings certain difficulties to judicial practice: whether the right of first refusal can be applied to all equity transfers,and how to balance the rights and interests of various shareholders.Especially with the development of economy and society,the structure of equity transaction has become more and more complicated,and the impact on corporate law is also intensifying step by step.In practice,new types of equity transaction disputes continue to emerge,while traditional theoretical research on shareholder pre-emption rights only stays at Basic attribute level.The complex transaction structure puts forward higher requirements for the determination of the right of pre-emption,especially at the level higher than that of the direct shareholder,that is,whether the pre-emption is applicable at the level of the parent company or even the actual controller has become a difficult problem in judicial practice..Therefore,it is necessary to explore the new field of shareholder preemptive rights-the penetrating effect of shareholder preemptive rights applies.In the “Land King” case on the Bund in Shanghai,China,SOHO China purchased the equity of the target company’s upper-tier company in order to avoid the preemptive right of other shareholders of the target company when it directly purchased the equity of the target company without results.By bypassing the other shareholders of the target company to exercise the shareholder’s preemptive right,using this indirect acquisition transaction mode,thus indirectly holding the target company’s equity.The focus of the dispute is how to solve the problem of the right of remedy for other shareholders of the target company under this indirect purchase mode.The court of first instance ruled that the defendant’s indirect equity transfer was invalid by “covering up illegal purposes in a legal form”.In the appeal case of Coroin in the United Kingdom,it was also a typical case of indirect equity transfer.The Barrac consortium grasped the control of the target company through indirect equity transfer.From the perspective of literal interpretation,the British courts strictly follow the analysis of the company’s articles of association and the shareholders’ agreement at the time of incorporation between shareholders,without making additional expanded interpretations,and support the free transfer of equity on the basis of full autonomy of the company’s will.In addition,not only are the Chinese and British courts different views on the two issues,but there are polarized views in our academic circles and in practice.It can be seen that how to weigh the contradiction between the company’s human resources and how to balance commercial interests is a very important topic for discussion.This article analyzes the main points of judges’ judgments in typical cases and finds the necessity of penetrating the application of the right of first refusal.Then,through the inspection of the relevant legal systems in our country,it is clear how to identify the actual control rights,and how to use the "Contract Law" "Illegal purposes",and sorting out the law’s requirements on the disclosure obligations of the acquirer,and drawing on the extensive discussion of "corporate personality denial" in recent years and related precedents,to bring a system design that can be used as a reference for the penetrating application of the right of pre-emption.In order to improve the system,this article examines how foreign countries(mainly the United States and Japan)view the "penetrating" trial thinking.The United States is the country that first applied the denial of legal personality system,and Japan was the country that first legislated the system of multiple representative litigation.Both of them think about problems from the multi-layered structure of the company,so by extracting the main point of view of the US court in the judgment of "revealing the corporate veil",and analyzing the thinking mode of the Japanese law to amend the corporate law.The main conclusions are drawn.First,it is believed that the provisions of the "Company Law" can be adopted by setting "control transfer clauses." Second,due to the "Company Law",the company’s articles of association may provide otherwise,that is,when the company’s articles of association are established,shareholders can stipulate that the shareholders’ right of first refusal can be exercised in the case of indirect purchase.However,since the law does not impose other restrictions on the articles of association,it is necessary for the judicial interpretation to refine the restrictions otherwise specified.As disputes arising from the agreement on the articles of association often occur,the handling of other cases after the details is also common The role of.Third,the court should be cautious in using "illegal purposes" when shareholders fail to make a special agreement in the articles of association.This article explores the penetrating application of shareholder pre-emption rights.It is an application of the "penetrating" trial thinking and a reflection on how the judicial organs apply the law and measure their interests in the face of difficult cases.