Equity transfer is a common way for shareholders to exercise their equity. According to China's Company Law, shareholders have the right to transfer all or part of their capital contribution in a legal way.
Several situations of equity transfer in limited liability companies;
According to the provisions of Articles 72, 73, 75 and 76 of the new Company Law, there are the following situations that cause equity transfer:
Equity transfer between shareholders
The first paragraph of Article 72 of the new Company Law stipulates that "shareholders of a limited liability company can transfer all or part of their shares to each other", that is, shareholders can freely transfer all or part of their capital contributions to each other without voting at the shareholders' meeting or any other restrictions.
(2) Shareholders transfer their equity to people other than shareholders.
Paragraph 2 of Article 72 of the new Company Law stipulates that "when a shareholder transfers its equity to a person other than a shareholder, it shall be approved by more than half of the other shareholders, and the shareholder shall notify the other shareholders in writing of the transfer of equity. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; If you don't buy it, you are deemed to agree to the transfer. " Because the limited liability company attaches great importance to the trust and cooperation between shareholders, in order to maintain the stability of shareholders and ensure the continuity of the company's operation, there are certain restrictions on the basis of ensuring the free transfer of equity, which require the consent of more than half of other shareholders. How to understand the word "more than half" here? Generally, there are two voting methods for shareholders' meetings, one is based on the number of people, that is, one person, one vote, and the other is based on shares, that is, one share, one vote. The new company law only expresses this in principle, so how to grasp it in practice? In my opinion, "more than half of the other shareholders" here should mean more than half of the shareholders, that is, one person, one vote, not shares. The reason for this is the following：
1. According to the dual nature of joint venture and joint venture of a limited company, the Company Law restricts shareholders of a limited liability company from transferring their shares to a third party. The fundamental reason lies in the company's "joint venture" factor, that is, maintaining the stable relationship between the company's shareholders. Therefore, the shareholders' meeting should adopt the "one person, one vote" system when making resolutions on joint venture matters.
2. According to the second paragraph of Article 44 and the second paragraph of Article 104 of the new Company Law, when a limited liability company or a joint stock limited company makes a relevant resolution, it must be passed by shareholders representing more than two thirds of the voting rights. These two articles clearly state that "representing more than two-thirds of the voting rights" refers to capital decision-making, taking into account the "capital combination" factor of the limited company. Therefore, from the comparison of terms, it is not difficult to judge that the "majority consent" stipulated in the second paragraph of Article 72 of the new Company Law should be more than half of the shareholders.
Transfer caused by compulsory execution of equity.
Article 73 of the new "Company Law" stipulates that when the people's court transfers the shareholders' equity according to the compulsory execution procedures prescribed by law, it shall notify the company and all shareholders, and other shareholders shall have the preemptive right under the same conditions. Equity compulsory execution is a form of equity transfer, which refers to a compulsory transfer measure for the people's court to transfer the shareholders' equity of a limited liability company by auction, sale or other means according to the execution procedures stipulated by the Civil Procedure Law and other laws and at the request of creditors.
Equity transfer caused by dissenting shareholders' exercise of repurchase right.
According to the spirit stipulated in Article 75 of the new Company Law, the conditions for dissenting shareholders to exercise the right of repurchase shall meet one of the following conditions: 1. The company has not distributed profits to shareholders for five years in a row, but it has made profits for five years in a row, which meets the conditions for distributing profits stipulated in the Company Law, that is, the company has made profits every year for five years in a row. After making up the losses and withdrawing the provident fund according to law, there are still profits for shareholders to distribute every year, but the company has not. 2. Merger, division or transfer of the company's main property. 3. When the business term stipulated in the Articles of Association expires or other dissolution reasons stipulated in the Articles of Association occur, the shareholders' meeting will adopt a resolution to amend the Articles of Association to make the Company survive. The reason why this provision is added in the new Company Law is that in recent years, due to the repression among shareholders, the company deadlock and the changes of shareholders' personal circumstances, the number of lawsuits aimed at withdrawing shares has gradually increased, but there is no express provision or other relief means in the law. In view of the above situation, after comparing and inspecting the company law legislation of other countries, the new company law broke through the traditional concept of capital system and introduced the stock withdrawal system, that is, the share repurchase right of dissenting shareholders.
(5) Legal transfer of equity caused by the succession of shareholder qualification.
The principle of Article 76 of the new Company Law stipulates that "after the death of a natural person shareholder, his legal successor can inherit the shareholder qualification". After the death of a citizen, his/her inheritance shall be inherited by his/her heirs according to law, and the shareholder's capital contribution shall be his/her personal legal property. After the death of a natural person shareholder, it shall also be inherited by his successor according to law. After the heir inherits the shareholder qualification, he becomes a shareholder of the company, obtains the equity, enjoys the asset rights and interests according to law, participates in major decisions and other shareholder rights.
Legal objectivity:
Company Law of the People's Republic of China
Article 71
Shareholders of a limited liability company may transfer all or part of their shares to each other.
Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing to agree to the transfer of their shares. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity;
Do not buy, as agreed to transfer.
Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation;
If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer.
Where there are other provisions on equity transfer in the articles of association, such provisions shall prevail.