Restrictions on the Freedom of Transferring Shares: from the Perspective of Autonomy of Private Law

• Main Authors: Chou, Yu Ching, 周禹境
• Other Authors: 劉連煜
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/bd3rw5

碩士 === 國立政治大學 === 法律學研究所 === 103 === The freedom of transfer shares is an important principle of our Corporate Law. However, there are many restrictions on it in our law system. After analyzing the specification purposes and the legal effects, we found that there are several defects we can improve. This essay will put emphasis on the behaviors of transfer before the incorporation registration of the company be done, of transfer of the shares owned by promoters, of a company redeem or buy back any of its outstanding shares. Nowadays, the modern Civil Law is willing to recognize the autonomy of private law and the freedom of contract. The articles of incorporation, bylaws, and agreements among shareholders externalize these core thinking. Nevertheless, because of the principle of the Freedom of Transfer Shares, we could not limit the transferability of shares by the articles of incorporation. Is this system meets the needs of Small and Medium Enterprises? How to handle this business commercial demand worth watching and learn from foreign legislations. This essay will foucus on the introduction of the enactment of Japan and the United States of America. Besides, the essay will discuss about the content of "Closed Corporations" special section of the Corporate Law and make recommodations to the provisions. In recent years, "Term Sheet" by venture capitalist and " Valuation Adjustment Mechanism " often cause discussions by domestic scholars, the essay will provide information about its content, elements and legitimacy and check whether these agreements conflict with our judicial practices and any of the principles of the Corporate Law in our country. Finally, if a company limitsthe transferability of the shares owned by employee in contract, what criterion could determine the validity of the contract, the essay will propose the observation and opinion individually.