Research On The Shareholders’ Pre-emptive Right In Judicial Auction Of Shares

Based on the characteristics of personal trust of limited company,Article 71 of the"Company Law" clears that limited company’s shareholders have the pre-emptive right,this right gives limited company’s shareholders the privilege to buy before a third party.However,the judicial auction of shares is different from the general external transfer of equity.As a market-oriented value discovery mechanism,its operating procedures follow the auction principle of fair bidding and the higher price.The different values between shareholders’ pre-emptive right and judicial auction of shares lead to a series of problems:whether the shareholders’ pre-emptive right is applicable to the judicial auction of shares;how to realize the right.To solve those problems,this article will start from the following three parts.Firstly,this article starts from the theoretical obstacles of the shareholders’pre-emptive right in judicial auctions of shares.The fairness principle of judicial auction conflicts with the human nature of the shareholders’ pre-emptive right,and the higher bidder of the judicial auction conflicts with the equal conditions of the shareholder’s pre-emptive right.Scholars have different opinions on the above problems.I think the pre-emptive shall be applicable to the judicial auction of shares from the perspective of positive reasoning and reverse hypothesis.Secondly,discussing the problems of shareholders’ pre-emptive rights in the judicial auction of shares.Following the procedure of judicial auction,this article summarizes and analyzes the difficulties and shortcomings of the shareholders’pre-emptive right in judicial auction.It specifically starts from five aspects:the consent right of shareholders under the judicial auction of shares,the way to realize the shareholders’ pre-emptive right,the abandon provisions of shareholders’pre-emptive right,the handling of pre-emptive rights after failed auction,and the relief measures.Thirdly,based on the perspective of interest measurement,the article proposes relevant suggestions to improve the shareholder’s pre-emptive right in the judicial auction.The shareholder pre-emptive Right in judicial auction contains the balance of public interest and private interests.When these public interests and private interests or inter-private interests have cross conflicts,the judicial auction procedures should be improved to achieve the balance of all parties.If the improvement of the procedure can’t achieve the above objectives,the relevant interest conflicts shall be analyzed in detail to make choices.By the interest measurement,the shareholder’s consent right in judicial auction shall be denied.The inquiry method consisted of three-stage division shall be insisted.The provisions of deemed abandonment might be unified.The pre-emptive right of shareholders shall survive after the failed auction.And the shareholders’ relief measures might be clarified indifferent stages.