중국 회사법상 유한회사 지분양도제한의 효력에 관한 연구 - 한국 회사법과의 기초적 비교를 통하여 -

Abstract

There are 2 types of limited liability company in current Chinese legal system, generallimited liability company and special limited liability companies such as one personcompany and limited liability company in foreign-invested enterprise law. Limitedliability company is a closed body of corporate that have union of the human and capitalfeature. Under this definition of limited liability company, transfer of shares means alegal action that aim to transfer the whole or some part of shares to other people. Share holders of limited liability company can freely transfer own shares in principle,but under some situations they could not. They can transfer their shares in freedombetween share holders of limited liability company. However they want to transfer to athird party, Chinese corporation law regulates they shall get the approval of the majorityof other share holders and go through procedure of request for preemption. Speciallimited liability companies’transfer of shares have more specific procedure such asevaluation and ratification of department of management, registration of an alteration etc. There is a difference of opinions on legal effects of limited liability companies’sharetransfer. Put majority opinion and precedent in China together, a share transfer contract that does not get consent of other share holders is effect-unsettled contract. Procedureof request for preemption and registration of an alteration are a share transfer contract’srequisites for counteraction, entry of a change of a holder in the register is effectrequisite. The procedure of transfer of shares in enterprise solely funded by the State iseffect requisite, but I think transfer of shares in limited liability company is valid bycontract between parties, and other procedures are requisites for counteraction againstcompany and a third party.