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About a limited liability company equity transfer legal system to explore

Author: YinLiang From: www.yourpaper.net Posted: 2010-05-31 10:02:05 Read:

Abstract: limited liability company owned together with co-uniformity characteristics, it is more complex in the equity transfer. In accordance with the provisions of the Company Law of the People's Republic of China, the equity transfer of the limited liability company can be divided into several different forms that shareholders internal transfer, external transfer and equity transfer of sui generis systems, these types of equity transfer its different characteristics, difference. These systems there is a certain lack of affect the operation in urgent need of further improvement.
Paper Keywords: limited liability company; equity transfer; Law

The equity transfer of the limited liability company, is the limited liability company's shareholders equity ownership is transferred to the legal acts of others. Limited liability company owned together with co-unity, from the nature of the limited liability company is a capital joint limits, the capital of the company closed characteristics, but because of the number of shareholders, the shareholders between have a personal relationship of trust has a strong co color. Due to the characteristics of the limited liability company, to the equity transfer its restrictive.
States thus the Companies Act, the equity transfer of the limited liability company made more stringent provisions. China's new "Company Law" in Chapter special provisions. Transfer of equity interest in a limited liability company can be seen the importance of the legal issues. In accordance with the provisions of the "Company Law", the equity transfer of the limited liability company can be divided into several different forms. That the internal transfer between the shareholders, the external transfer and equity transfer of sui generis systems.
an internal transfer of the equity of the limited liability company
The internal transfer of the limited liability company's shareholders in general internal transfer. Transfer between the shareholders of the Company and will not result in the generation of new shareholders only affect the size of the internal shareholders right to ask a change for the limited liability company of great importance to the co-factors, does not affect the relationship of trust between the shareholders. Therefore. Most countries the Companies Act are not made strictly limited. Mainly in the following three modes: 1. Absolutely free mode, that the legislation allows options in general internal freely transferable, without any restrictions. This mode the legislation of countries, mainly in Japan. Japan Limited Liability Company Law "Article 19 provides that:" between the members (shareholders) can be freely transferable share, but the transfer of share to a person other than the members need the consent of the Conference of the members. "2. Relatively free mode, absolute freedom, relatively free mode refers to the internal transfer of legislative options, though not expressly limit. Authorized the Articles of Association of the Company; legislation on internal equity transfer restrictions. Authorized the Articles of Association of the Company may cancel or relax such restrictions. Countries and regions of this model legislation are: Germany, France, the United Kingdom, the United States, South Korea and China's Macao Special Administrative Region. German Limited Liability Company Act "equity transfer into full and partial assignments, the law of Article 15 (5) provides that:" through the company's contract for the contributions to let that other elements, in particular provisions, funded so that needs to be recognition of the company. "3. Limit mode, which refers to the Law of the transfer of internal and external transfer of the equity interest in a limited liability company treated equally stringent restrictions. This model legislation is in Taiwan, China. Taiwan, China "Company Law" Article 111, paragraph 111 of the Law "Article 72, paragraph:" Shareholders have to be a majority of the other shareholders agree that not all or part of its contribution, transferred to another person. " provides that: "between the shareholders of the limited liability company can be mutually transfer all or part of the shares." Paragraph Four: "Articles of Association for the equity transfer as otherwise provided, the provisions shall prevail." shows that China's equity limited liability company internal transfer based on liberalism as the keynote, in principle, does not effect any restrictions, can be seen from Paragraph Four is a way to take the agreed limit. This provision is based on the respect for the autonomy of the shareholders and the shareholders' capacity for self-trust. The other hand, the transfer of foreign shareholders stipulated in the articles of association of the company internal conditions for the transfer of the equity interest in more stringent conditions or does not allow internal transfer. Will be how to deal with? Here, I think. The Articles of Association of the equity interest in the internal transfer restrictions, shall not exceed the external transfer conditions.
Second, the external transfer of the equity interest in the limited liability company
The so-called external transfer refers to the shareholders of a limited liability company the share transfer to the legal acts of the third person outside the company. The difference is that with the transfer of equity interest in internal. Third party outside the company, the shareholders of the transfer of ownership does not change the investment ratio of the other shareholders in the company, but of the original shareholders of mutual trust between people relationship will be affected or even destroyed. Therefore, in order to ensure the internal stability of the limited liability company, the vast majority of countries (regions) of the Companies Act external transfer of equity strictly limited. French Commercial Law Article 45 provides that: "only after the consent of the consent of a majority of shareholders representing at least 3/4 of the shares of the Company, the Company's shares was transferred to give the company has nothing to do with the" Japan "Limited" l9 provides: "Shareholders of all of its shares or a transfer to a non-shareholder, the shareholders' meeting acknowledged." Germany "limited liability provisions of section 17 of the Companies Act, the shareholders" Only by the Company recognizes so that part of its investment. Such recognition need to be taken in writing: acknowledgment, you must obtain the identity of the person by name. "China's" Company Law "provisions of article 72, paragraph 2, 3 and 4 of equity external transfer system: shareholders other than shareholders to transfer their ownership shall be agreed to by a majority of the other shareholders. Shareholders should notify other shareholders equity transfer matters written consent solicitation, other shareholders 30 days from the date of receipt of the written notice Unanswered, as agreed transfer of more than half of the other shareholders do not agree to the transfer of the shareholders who disagree should purchase the equity of the transfer. purchased deemed to have consented to the transfer. "the shareholders consent to the transfer of equity, other shareholders have priority under the same conditions. the right to buy two or more shareholders advocated the preemptive rights, agree on their respective percentage of purchase; consultation fails in proportion to their respective capital contributions in accordance with the mounted so that the exercise of the right of first refusal as otherwise provided by the Articles of Association of the equity transfer provisions shall prevail "This system has the following characteristics: 1. "Company Law" pre-emptive rights of the shareholders' pre-emptive rights is a priority under the same conditions enjoyed by other than the transferor of the shares of other shareholders the right to buy the shares transferred. Reflected in the shareholders consent to the transfer of the "Company Law" options under the same conditions. Other shareholders have a preemptive right. 2. Specified proportion of the number of shareholders as a way to exercise voting rights, to further exclude the transfer of ownership to the shareholders in accordance with the proportion of capital contribution to people other than shareholders exercise their voting rights by shareholders. 3. Shareholders in respect of its equity transfer written notice to the other shareholders' consent, the other shareholders from the date of receipt of the written notice 30 days Unanswered deemed to have agreed to the transfer. Based on the aggregate of the consideration of the limited liability company, this provision does not prohibit the transfer, but to limit. Otherwise. If the other shareholders neither agreed to transfer, do not buy, has led to contributions by the shareholders locked in the company, contrary to the nature of the property for sale.
Although the new "Company Law" has great advantages, but still there are some problems: First, the shareholders' equity on the transfer of the possibility of a partial exercise of pre-emptive equity interest in a limited liability company is transferred to the outside. Part of the exercise of the right of first refusal on the transfer of ownership of the other shareholders, but not all buy the equity of the transferor. In this regard, the Companies Act does not expressly provide that in practice there is much controversy. As can be seen from the pre-emptive rights of the "Company Law" legislative intent. To exercise the right of first refusal to purchase all. You can also buy some. According to the provisions of Article 72 (4) of the Companies Act, the shareholders in advance to give the provisions of the articles of association of the company. Second, if the third party is deliberately raised the price of the purchase options, and shareholders whether in the exercise of the right of first refusal at this price as the standard. "Company Law" is not clearly defined. According to the Company Law of Japan and France, mainly in the following several ways to determine the price of the share transfer: (1) The parties decided in consultation; (2) the negotiation fails to designate a third party to determine by the parties; (3) requested the Court. The author believes that China can learn from this provision, and to expressly in the Law. Third, the provisions of the Articles of Association of the Company limits. According to Article 72 (4) of the Law provides that: "Articles of Association of the Equity Transfer as otherwise provided, they shall prevail." In practice. If the restrictions of the Articles of Association of the Company is higher than the transfer of external conditions, or even prohibit external transfer, the effectiveness of the Act will be challenged, also in violation of the spirit of the autonomy of private law, the author that such a rule should be done invalid provisions.
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