RESEARCH ON APPLICATION AND PERFECTION OF SHAREHOLDERS’PRE-EMPTIVE RIGHT SYSTEM IN LIMITED LIABILITY COMPANIES

有限责任公司股东优先购买权制度的适用与完善

The shareholders’pre-emptive right system in limited liability companies stipulated by the Company Law of China and other relevant judicial interpretations has large room for improvement concerning the subject of rights,the conditions of the exercise of rights,the time limit for the exercise of rights,and the consequences of the exercise of rights.Future revisions to the Company Law may limit the subject of rights to dissenting shareholders,that is,shareholders who have exercised consent rights no longer have the pre-emptive rights,and at the same time the companies and the persons designated by the companies may be included in the scope of the subject;the exercise conditions may be simplified as much as possible;the starting point of the time limit for exercising the rights may be dealt with according to specific situations and the specific length of the time period may also be categorized;the effect of the exercise may enforce the effectiveness of real rights in order to protect the interests of the holders of pre-emptive rights.

我国《公司法》和相关司法解释中的有限责任公司股东优先购买权制度在权利主体、行使条件、行使期限、行使后果等方面存在较大完善空间。未来《公司法》修订应当将权利主体限缩为异议股东,即曾经行使同意权的股东不再享有优先购买权,同时将公司以及公司指定的人纳入主体范围。行使条件应当尽量予以简化;行使期限的起算点宜根据情况区分处理,具体长度也应做类型化处理;行使效果应强化物权效力,以保护权利人利益。