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Comparative Study of Cross-Strait limited liability company funded transferred

Author: XuZhaoJi From: www.yourpaper.net Posted: 2009-11-28 02:06:19 Read:
Paper Keywords: cross-strait limited liability company shareholders invested transfer
Abstract: the two sides limited liability company funded the transfer of legislative existence of convergence. Chinese mainland New Companies Act absorption according to their actual experience of China's Taiwan region, the more scientific. Legislative momentum for this convergence will play a positive role in promoting further cross-strait economic exchanges.


Due to historical reasons, the governance of the state of mainland China and Taiwan punishment, in this century, the two sides of each of the "Company Law" a more substantial revision, cross-strait limited liability company to fund the transfer of the relevant issues with certain practical significance.

Transfer restrictions

The so-called "capital transfer" its contribution to the company's shareholders of a limited liability company to be transferred to a third party other than the shareholders of the Company. External transfer on shareholders' capital contribution of each of the two sides of the strait "Company Law" are "voluntary transfer" and "forced transfer" of the points. Taiwan "Company Law" will be "voluntary transfer" into the transfer of the transfer of non-director shareholders and directors shareholders. Due to a limited liability company with the nature of the company has co-owned and company merger, transfer, funded by shareholders Whatever the form, the two sides set certain restrictions.

(A) The voluntary transfer
Shareholders of the voluntary transfer of ownership, including paid and free of charge transfer rights due to the contribution of the company entitled to the behavior of others, including the shareholders' request to recover the investment withdrawal behavior. Its limit is usually manifested in two aspects, one is the "consent of the majority, and the second for the" right of first refusal ".
1, "the consent of the majority" Co., Ltd. Shareholder wishes to transfer its equity to shareholders other than the third person must seek the transfer of ownership of companies outside shareholders more than half of all shareholders agree. If the rejected, the third person can not achieve the purpose of the transferee's. Taiwan "in section 111 of the Companies Act, paragraph 1," shareholders have to all shareholders consent of the majority of its funded in whole or in a transfer of others ". This shows that the legislation does not give the shareholders of a limited liability company as the Corporation shareholders as funded foreign transfer of the right to freedom. The ratio of the amount of capital funding accounted company regardless of a limited liability company shareholders, its desire to transfer their investment to shareholders other than the "others", must seek the views of other shareholders, and the consent of more than half of all shareholders other before being for sale. However, the "others" include other shareholders more puzzling. Continent "Company Law" Article 72 "between the shareholders of a limited liability company can transfer all or part of the equity," shareholders to shareholders other than the person transfer of ownership should be agreed to by a majority of the other shareholders. "Shareholders to shareholders other than the person to transfer their ownership, compared to the above provisions of the Companies Act in Taiwan clearer and less ambiguous. The two sides to give full freedom to the shareholders of a limited liability company for sale internally funded, and the provisions of the foreign transfer must be subject to the other shareholders a majority (not holding funded companies accounted for a majority of the registered total capital) agreed conditions, here embodied regardless of the amount of the capital contribution of the shareholders of a limited liability company, each shareholder has equal voting rights. Required to do so, apparently that is conducive to maintaining Ltd. "co", thereby maintaining the company's stability. Voluntary transfer of this, Divestment and inheritance can also apply the provisions of? Individual shareholders to recover the investment in the company during the existence of demand due to the relevant provisions of the two sides are not shareholders of a limited liability company Divestment, and can not be applied less the terms and conditions of the funding to achieve the purpose of the withdrawal, if the same does not allow shareholders in accordance with the relevant provisions of the transfer of investment reached Divestment purpose, such a requirement is clearly too rigid and should be permitted the shareholder reference to the relevant provisions of the voluntary transfer of capital contributions Divestment. Shareholders death, the bequest, inheritance, funded transfer, this transfer of shareholders' capital contribution is different, continent the existing Company Law "Article 76 provides that" after the death of a natural person shareholders, its legal successor can inherit the shareholders eligible ; However, except as otherwise provided in the articles of association. " If setting the shareholders funded the purpose of the transfer restriction mechanism for maintaining harmonious relationship of trust between the shareholders of the Company, the heirs or bequests counterpart of the original shareholders may not be trusted by the other shareholders, so in this case, is still subject to "all shareholder approval of the majority "restrictions should not be specified directly following the die of hunger like East qualification, because of the limited liability company's shareholders eligible personal inseparable, does not belong to the Heritage range, without first obtaining the consent of the other shareholders, by direct provision of law inherited by others significantly wrong.
2, the "right of first refusal" also said the "first buy terms and conditions. Taiwan "in section 111 of the Companies Act, paragraph 2," before transfer, do not agree with the shareholders' pre-emptive right; such does not bear deemed to consent to the assignment, and agreed to amend its articles of association of the shareholders and their capital contribution matters ". Required to do so, is to solve the capital transfer in the shareholders agree contradiction with the charter, "the shareholders agreed to" set Name of shareholder capital contribution Co., Prospectus absolutely necessary records matters, shareholders transfer their investment When, inevitably lead to changes in the Articles of Association of the Company. Changes of the Articles of Association of the Company, must be approved by all the shareholders agree that the provisions of this paragraph after paragraph, shareholder-financed transfers may occur despite all shareholders other than half agree, but after the transfer takes effect, shareholders of those who do not agree to the transfer, again do not agree with the changes to the Articles of Association on the grounds, resulting in the embarrassment of charter records relating to these matters are inconsistent with the actual situation. The provisions of paragraph 2 of Article 72 of the continent "Company Law", "Shareholders in respect of the transfer of its capital contribution to matters written notice soliciting other shareholders agree, the other shareholders from the receipt of the written notice of the date of the expiration of the 30th Unanswered deemed to consent to the assignment of other shareholders more than half do not agree to the transfer, the shareholders who disagree should buy the transfer of the shares not purchased deemed to consent to the assignment of the provisions of paragraph 3 of the shareholders consent to the transfer of equity, under the same conditions, the other shareholders have priority to buy consultation to determine the proportion of each purchase rights, two or more shareholders claim to exercise the right of first refusal; consultation fails, in proportion to their respective capital contributions in accordance with the time of the transfer the exercise of the right of first refusal ", the provisions of paragraph 4 of the Articles of Association of the capital transfer as otherwise provided shall prevail. " Legislation compared to Taiwan, the mainland first give shareholders more autonomy, not only allows the provisions of the Articles of Association is different from the law and in the Articles of Association and legal inconsistencies prevail articles of association, which means that the capital transfer restrictions funders convention can stricter than the law. Secondly, more operational and the fairness of the mainland states Grant funded shareholders fulfill the obligations of a written notice of the other shareholders did not reply within the statutory period, it is deemed to have consented, which can avoid unnecessary disputes and embarrassment, practice may appear two or more shareholders advocated pre-emptive right to set the principles of fairness, equality solutions. Taiwan "Company Law" even with the provisions of Article 111, paragraph 2, half to be supplemented, but if not convene a shareholders' meeting or transferred funded at the request does not make a resolution calling for shareholders to transfer their investment will never be able to achieve the purpose of the transfer . In addition, Taiwan "Company Law" is not how to solve the dispute of the shareholders' pre-emptive rights provisions.
3, the directors of the capital transfer. In Taiwan, the director of the Limited Statutory essential business executive organ, the status of the directors of a limited liability company to be much more important than the directors position in mainland companies, in order to regulate the behavior of directors, allowed to assume its powers corresponding obligations, so the The shareholder directors shareholders and non-director shareholders, and the case of the two capital transfer provisions different conditions, more stringent conditions for the transfer of Directors of capital transfer than the contribution of the non-director. Taiwan "in section 111 of the Companies Act the provisions of paragraph 3 of the directors of a company have to the other all the shareholders agree, not its funded in whole or in part, transferred to others. Therefore, as long as there is a shareholders object to the transfer, the directors will not be able to transfer their investment.
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