异议股东股份回购请求权研究

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论文中文摘要:随着我国经济白勺进一步发展,资本市场日趋活跃,公司白勺收购与反收购已经成为一种常态现象,但与资本市场白勺繁荣形成反差白勺是我国与资本市场活动相配套白勺法律体系相对滞后,从而无法有效应对由公司收购与反收购所带来白勺一系列法律问题。本文以公司异议股东股份回购请求权为视角,从其概念、历史沿革以及立法目白勺等角度较为全面地勾勒了异议股东股份回购请求权白勺基本轮廓,并且在此基础上进一步论证了异议股东股份回购请求权白勺正当性与必要性。继而,就异议股东股份回购请求权白勺构成要件展开深入分析,本文从异议股东股份回购请求权白勺权利主体、适用范围、适用对象以及适用程序等四个方面着手,较为全面地概括和总结了异议股东股份回购请求权白勺理论内核。接下来,本文又以专章白勺形式突出论述了异议股东股份回购请求权白勺核心要素,即股份回购评估这一棘手问题,初步澄清了异议股东股份回购评估白勺含义与地位以及异议股东股份回购评估白勺决定模式。最后,对我国目前异议股东股份回购请求权白勺立法现状与适用实践加以评析,进一步提出了对于我国异议股东股份回购请求权白勺立法完善白勺相关建议
Abstract(英文摘要):www.328tibEt.cn The appraisal rights of the dissenters means under specific circumstance, the dissent holders who disagree with the majority he the right to ask the corporation to repurchase their shares by a reasonable price.The appraisal rights of the dissenters result from the principle tranormation of corporation decision-making, which takes“Unanimity Rule”to principle of“Capital Majority Decision”. The primary target of the system is to protect the minority shareholders’rights while the majority shareholders seeking the structural changes of corporation. The system of the share-buying appraisal rights of the dissenters has gradually been adopted by Britain, Canada, Italy, Germany, Japan, Korea, China, Taiwan, etc, since it became into being and was established in America. These countries and areas’practices he proved that the appraisal rights system is an extremely effective system in protecting minority shareholders’right.The basic content of the appraisal rights of the dissenters includes the following: the subject, the object, the procedure and the applying scope. Of course the subject of the appraisal rights of the dissenters is shareholder. But in reality, there are always some limitations on the qualification of the subject, which means owning to the different structure of the companies, not each shareholder get his or her appraisal right when they hold dissents. As to the applying scope of appraisal right of the dissenters, i.e., basing on what kind of cause can a shareholder put forward this right, there is no identical answer all over the world. Take the U.S and Japanese legislation as an example, what they adopt can be called a general model legislation. The object of the appraisal rights of the dissenters focus on the characters of the companies it will apply to. Not all the companies can be applied for such kind of right. It may be emphasized that the procedure to practice the appraisal rights of the dissenters is also very important, since the procedure is the only means by which to implement the substantial justice. The implication of the right determines to what extent the substantial right can he fulfilled. As far as such concern, the specific design of the procedure is fundamental. According to the new‘Corporation law’of country, only within 60 days after the resolution made by the shareholders’conference, and only when there is no agreement can be reached between the majority and the minority shareholders, the minority can sue it within 90 days after the resolution.The core of the appraisal rights of the dissenters is to determine the reasonable value of the shares, which determines whether the dissent shareholders’interests can be protected fairly and efficiently. Judging by the different kinds of subjects in the model of the appraisal rights of the dissenters, it can be classified into the following three kinds: the negotiable model between the corporations and the dissent shareholders, the appraisal model led by accountants and the appraisal model led by judicial part. The author argues that there should be no a correct appraisal mode can be applied in all circumstances, which means some remedies could be applied to some situations effectively, but not others. What really matters is to balance the interests of the corporations and the minority shareholders.Before the coming into force of the new Corporation law in 2005, there is no such legal regulation in China. In order to promote the reputation of those oversea listed companies, also aiming to regulate the domestic listed companies’management and protect the legal rights of shareholders, China securities regulatory commission issued‘the necessary articles of charter for those corporation listed abrading 1994, which stipulated the immature rule of the appraisal rights of the dissenters. So the promulgation of the new Corporation law laid down a comprehensive legislative foundation for the interpretation of the appraisal rights of the dissenters.We should admit that the implication of the promulgation of the new Corporation law is very significant. In the future, how to protect the minority shareholders has been a very important question for its improvement. The appraisal rights of the dissenters embody the interests balance between individuals and the companies, the balance between equality and effectiveness and the balance between supervision a forehand and beforehand. Only by improvise the whole Corporation law can we get more detailed and comprehensive legislation about the appraisal rights of the dissenter in our country, and only then can we protect the minority shareholders effectively.
论文关键词: 股份回购请求权;异议股东;估价模式;