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Right of dissenting shareholders share repurchase request

Author: LiYuXia¡¡JieYueZhong From: www.yourpaper.net Posted: 2009-10-29 08:51:20 Read:
Abstract: any single doctrine is difficult to meet the need of the shares of the dissenting shareholder appraisal rights, only to look forward to the interests of the said frustrated mainly to balance the interests of injustice Relief said bodies decomposable theory supplemented in order to better The interpretation of this right. Shareholders, regardless of category, all shareholders of listed companies and unlisted companies, including shares of dissenting shareholders may exercise appraisal rights. Restrictions on the number of shares repurchase principle is without prejudice to the interests of creditors. Dissenting shareholders prior to the exercise of retirement options should be exhausted internal remedies.
Keywords: shares of dissenting shareholders repurchase claims; scope; rights restrictions

Shares of dissenting shareholders repurchase claim Overview

1. Shares of dissenting shareholders the right to repurchase request. Shares of dissenting shareholders the right to repurchase request, also known as the shares of the dissenting shareholder appraisal right, appraisal right, retirement options, at the general meeting on the merger, dissolution, business to the important matters of the company before the vote and voting, if shareholders explicitly expressed objections to get a resolution through the matter, the shareholders have the right to require the company to buy their holdings of shares of the Company [1] a fair price.
2 on buyback of shares of dissenting shareholders the right opponents and those who support point of view. The dissenting shareholders share repurchase claims, also known as the retreat equity reasonable questions about it, academia there is a dispute.
Opponents of the main reasons: first, the shareholders Divestment illegal basic theory, undermining the company's independent property. Second, withdrawal will result in the company's capital is untrue. Entitle the shareholder to retire equity is very dangerous and potentially destructive [2]. Fourth, the acquisition of own shares is contrary to the principle of equality of shareholders. Fifth, the fairness of their own shares of the the harmful shares transactions. Sixth, the acquisition of own shares to encourage authoritarian operators misuse of company financial consolidate control over the disadvantages [3]. Seventh, the shareholders Divestment contrary to Company societies.
The main reason in favor of it or doctrine: (1) look forward to the interests of frustrated fill. (2) the need to balance the interests of (3) relief of injustice. (4) groups decomposable theory embodies.

Second, the national legislative system request the right to repurchase shares of dissenting shareholders and its provisions

(A) The countries of the world, request the right to repurchase shares of dissenting shareholders legislative style
Prohibited doctrine: mainly strict adherence to statutory capital system of civil law countries, with the development of the social life, the drawbacks of the statutory capital system is starting to show, people began to re-evaluate the system's functionality.
The liberal: common law countries adopted market economy developed in the Anglo-American tradition of self-discipline, and has been the control of the government and civil law countries can be said that there is almost no.
3 eclecticism. Germany and France, although not explicitly put forward the system, but there are similar provisions. German courts through case law established the the two moderate relief: the right of withdrawal, and delisting rights. France also made similar to the German legislation technical process [4] in the practice.
(B) the types of national legislation applicable to the Company requests the right to repurchase shares of dissenting shareholders
Countries buyback of shares of dissenting shareholders the right to the suitability of the listed company has a larger controversy, South Korea and the United States certainly 'negationism the legislation.
(C) States on buyback of shares of dissenting shareholders shall apply to shareholders range
Generally apply only to hold opposing views on the resolution of the company's shareholders. American Model Company Law Amendment "to expand the scope of the dissenting shareholders, the law, the registered shareholder or beneficial shareholder may exercise the right to dissent. Benefit shareholders of its shares are held by Equity Trust or beneficial interest of all shares held by the custodian as a registered shareholder [5].
(D) national legislation applies specifically to repurchase shares of dissenting shareholders claim matters
U.S.: for dissenting shareholders share repurchase requests right the U.S. demonstration Companies Act and the Companies Law states are clearly defined. Correction standard provisions of Section 13.02 (A) of the Companies Act, against the shareholders entitled to retirement options five situations: (1) the merger; (2) Stock exchange program; (3) non-normal commercial activities of the company's property sale or exchange; modify (4) of the Articles of Association; (5) Articles of Association of the Company, the corporate governance rules or resolutions of the Board of Directors.
Japan: Japanese Commercial Code provides for seven against the shareholders entitled to retire equity situations: (1) operating all or an important part of alienation; conclusion, modification or rescission of all business about the rental, entrusted with the operation or on the profit or loss of business with others the common contract; transferee of his company's business; (2) the merger; (3) Stock Exchange; (4) The division of a company; (5) to restrict the transfer of shares to change the articles of association; (6) Co., organizational changes Co., Ltd.; (7) Co., Ltd. was changed to Limited.

Third, China's new Company Law provisions request the right to repurchase shares of dissenting shareholders

China's new Company Law "Article 75" of the following circumstances, to vote against the resolution of the shareholders' meeting, shareholders can request the company to purchase its stock at a reasonable price: (1) for five consecutive years to shareholders distribution of profits, the company the five consecutive years earnings and profit distribution conditions stipulated by this law; (2) the merger, division, transfer of the main property; (3) Articles of Association of the Company under the expiration of the period of business or the articles of association the grounds for dissolution occurs, the shareholders' meeting passed a resolution to amend the Articles of Association so that the company continues to exist ....... "

Fourth, further legislation on the repurchase of shares of dissenting shareholders in the new Companies Act claim perfect

(A) reasonable definition of the buyback of shares of dissenting shareholders exercise of the right main
1 non-voting shareholders share repurchase claims. There are two legislative style: the United States and Ontario, Canada, to take legislative system Negativist; Korea and the Canada Business Corporations Act take certainly 'legislative system, and acknowledge that they may also exercise the repurchase request rights of the shares of dissenting shareholders. The author argues that China should be taken affirmed 'legislative style.
2. Invested the share repurchase claims there are flaws shareholders. The author believes that the defects funded only lead to the exercise of shareholder rights restrictions, it is not or not the issue of shareholder rights, just with less complete and incomplete.
Following the the shareholders share repurchase claims. Taiwan scholars, Mr. Lin Renguang that: assignee in addition to inheritance shares entitled to exercise the right to request share repurchase because the transferee is not the protection of human rights desired. Assignee the transferee shares of behavior after the shareholders' resolution, no rights in respect of the resolutions to express an opinion, since no objection to the identity of the shareholders at all, and thus not entitled to exercise the right to share repurchase requests. "[6] I agree with this view.
(4) the right for the dormant shareholders is entitled to the shares of dissenting shareholders repurchase requests. I believe that the behalf of shareholders with real shareholders, based on the the equity trust relationship or equity agency relationship dormant shareholders should not entitled to appraisal rights of dissenting shareholders, dissentient shareholder appraisal rights to the the nominal shareholders indolent exercise dormant shareholder losses, dormant shareholder basis and on behalf of shareholders agreement and compensation.
5 is an imposter as a shareholder who is entitled to appraisal rights of dissenting shareholders. Some scholars believe was an imposter to shareholders by a lack of investment in the company meant nor authorized on behalf of a registered company, and therefore do not have the company's shareholders eligible imposter [7]. Therefore, I believe that was an imposter for shareholders who are not entitled to appraisal rights of dissenting shareholders.
(B) appropriate resolution to expand the buyback of shares of dissenting shareholders shall apply to matters
China's new "section 143 of the Companies Act only requires that the shareholders of the merger by the shareholders' meeting to make the company, discrete resolution dissent, require the company to purchase his shares. I recommend: listed stock liquidity constrained or transfer of shares will be subjected to unreasonable loss exercise retreat options; does not agree to the equity shareholders split the reform program may also exercise its retreat equity.
(C) the detailed provisions of the shares of the dissenting shareholder appraisal rights exercise program
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