Effectiveness Identification And Rights Relief Of The Contract Of Equity Transfer Of Shareholder’s Pre-purchase Right

Article 71 of the Company Law stipulates that other shareholders shall enjoy the preemptive right under the same conditions.In November 2019,the Minutes of the Civil and Commercial Trial Work Meeting of the National Courts held that the equity transfer contract should be recognized as valid,but it did not elaborate on the reasons and remedies.This paper returns to the traditional civil law theory,from the nature of shareholders’ prepurchase right,combined with the legislative purpose,thinks that shareholders’ pre-purchase right should belong to the forming right,so as to better protect shareholders’ rights and prevent the power from being emptying.In terms of contract effectiveness,first of all,the contract that infringes the shareholders’ pre-purchase right cannot be performed and only has the legal consequences of the unrealized burden behavior,which does not affect the legality of the punishment behavior,that is,the equity transfer contract is still valid.Secondly,this paper discusses from four angles that article 71 does not belong to the effective compulsory norm,and that the preemptive right is an artificial system designed to protect the individual interests of shareholders.Thirdly,through the method of legal hermeneutics,positive analysis and normative analysis,the author explores the intention of legislation and weighs the value of the system.For the relief of shareholders’ preemptive right,because the ownership of equity rights will directly lead to the different ways of relief.The author thinks that the reason for the ambiguous time node of equity change lies in the ambiguous appearance of equity right caused by the dual publicity system.After the time node of equity transfer is determined,first of all,the obligation and responsibility of the company can be clarified by giving the company the status of independent review.Secondly,the third party’s duty of care should be enhanced,and the third party should bear a more stringent burden of proof,so as to ensure that the shareholder with the preemptive right has exercised the right,so as to better protect the shareholder’s preemptive right.