Stakeholders include shareholders and creditors. The damage to minority shareholders' rights in the process of equity transfer is mainly that large shareholders use their dominant position to infringe on minority shareholders' right to know and vote, so that the equity transfer behavior is completely controlled by large shareholders.

Take share repurchase as an example. In practice, although the repurchase price can reflect the quality of the company, the repurchase usually occurs between the listed company and the major shareholder, which is a typical related party transaction.

If there are obvious or hidden problems in the assets of the transaction, which are difficult to be reflected in the transaction price, the interests of minority shareholders may be infringed by the resolution made by the shareholders' meeting without authorization, which may lead to the litigation risk of shareholders requesting the people's court to cancel the resolution.

This is caused by unreasonable ownership structure and irregular information disclosure. Therefore, we should pay attention to the information disclosure procedure of share repurchase and protect shareholders' right to know and vote.

Second, the legal risks in the protection of creditors' rights and interests.

The important guarantee for creditors of a joint stock limited company to realize their creditor's rights is company capital. According to the principle of constant capital, the company's capital shall not be changed unless the articles of association are amended. However, after the share repurchase reduces the registered capital, it will inevitably reduce the registered capital, which is not conducive to the protection of creditors' interests.

So on the one hand, it involves the disclosure of information; On the other hand, in order to protect their own interests, creditors may put forward corresponding protection measures in advance, such as setting clear financial performance standards, to prevent the company from taking repurchase behavior even if the funds are insufficient or the financial situation deteriorates.

Third, the legal risk of equity defects.

In practice, the legal risks of equity defects are mainly manifested in the following aspects:

1. Legal risks of false capital contribution defects. In other words, the actual price of non-monetary property is obviously lower than the subscribed capital contribution, and the shareholders who make false capital contribution are required by law to repay their capital contribution, which mostly happens in non-monetary capital contributions such as intellectual property rights. Therefore, it is very necessary to examine the types of investment made by the transferor, especially non-monetary investment, which is prone to false investment.

2. The legal risk of transferring defective equity due to insufficient capital contribution (default). That is, if a shareholder fails to pay his capital contribution in full and on time, he shall be liable for breach of contract to other shareholders in addition to making up the additional capital contribution. Therefore, it is also necessary to investigate the actual situation of the transferor's contribution.

2. The legal risk of false capital contribution defects. That is, the shareholders did not contribute at all, and gained the trust of the registration authority by deception. In the case of false capital contribution, shareholders should not only make up their capital contribution, but also bear the legal responsibility of administrative punishment.

To sum up, it can be seen that the transferee does not know that the transferor has investment defects, so the transferee's shareholders will not bear any responsibility for the investment, but the company or other shareholders require the transferor to make up the investment with the transfer price. Otherwise, in the case of knowing that there are defects, the equity transferee generally bears the supplementary liability for compensation for capital contribution in practice.

Fourth, the legal risk of price payment.

Equity transfer price's payment should be very cautious. In this process, there are mainly the following legal risks:

(1) Legal risks determined by the transfer price. There are usually several ways to determine the equity transfer price: the price of equity at the time of shareholder's capital contribution is taken as the transfer price; Take the net assets of the company as the transfer price; Take the audit evaluation price as the transfer price; Auction and change the sales price as the transfer price; The transfer price of state-owned shares shall not be lower than the net asset value per share.

In practice, we can consider first determining the benchmark price of equity transfer through comprehensive evaluation, and then determining the transfer price through negotiation.

(2) the legal risk of the choice of payment method. Including the legal risks of choosing payment instruments; Legal risks in the choice of payment methods; Legal risk in price supervision-price deposit: The transferee shall promise that the transferee's funds are legal and fully capable of performing the funds, and determine whether the obligation to pay the consideration for equity transfer is fully fulfilled.

Verb (abbreviation of verb) Legal risk of equity swap (cross-shareholding).

Cross-shareholding easily leads to improper related party transactions (controlling shareholders and actual controllers), which makes the property rights of enterprises vague and it is difficult to form the actual controlling shareholders, and the company management personnel replace the company owners to form insider control;

Affiliates may be damaged by the will of major shareholders or holding groups, and minority shareholders may be treated unfairly in business opportunities and profit distribution, thus stimulating shareholder conflicts.

Therefore, restrictions can be considered through the articles of association. When investing abroad, the investment limit must be restricted by the voting of relevant institutions (three associations) to strengthen the supervision and control of the business decisions of affiliated companies and protect the voting rights. There are three ways of equity swap in practice, namely equity swap, equity plus assets swap or equity plus cash swap.

6. Legal risks faced by equity inheritance.

Limited by Share Ltd is mainly based on capital merger, and there is no problem of equity inheritance. The equity of a limited liability company not only has the attribute of shareholders' personality right, but also has the legal nature that personality right cannot be inherited, so the procedures and methods of equity inheritance are different from those of general inheritance.

As far as a limited liability company is concerned, the articles of association may impose necessary restrictions on the shareholders' qualifications of the successor, including authorizing other shareholders or the company to acquire the equity inherited by the successor at a fair price.

The acquisition of shareholder qualification of a limited liability company must be recognized or recognized by other shareholders. Shareholders' personal management ability, social experience, reputation, moral quality and other factors are inevitably considered among shareholders.

Extended data:

1, the effective risk of equity transfer contract and its prevention

Unless the laws and regulations stipulate that the equity transfer contract shall go through the approval and registration procedures before it takes effect, the equity transfer contract established according to law shall take effect upon its establishment. If the law stipulates that the equity transfer contract must go through the examination and approval procedures before it can take effect, it is mainly limited to Sino-foreign joint ventures, Sino-foreign cooperation, equity transfer of foreign-invested companies and equity transfer of state-owned shares of companies.

The transferor and the transferee may also attach conditions for the contract to take effect, such as agreeing that the contract will take effect after the resolution of the board of directors or shareholders' meeting of the transferor company is passed, or agreeing that the contract will take effect when other shareholders of the company promise to give up the preemptive right.

It should be noted that the entry into force of the equity transfer contract does not mean that the equity transfer takes effect.

The entry into force of the equity transfer contract refers to the issue that the contract between the transferor and the transferee is legally binding on both parties. The effectiveness of equity transfer refers to the time when the equity is actually transferred, that is, the time when the transferee obtains the status of shareholder. After the equity transfer contract comes into effect, the equity transfer can only be realized after the two parties to the contract properly perform it.

2. Performance risk of equity transfer contract and its prevention

In the performance of the equity transfer contract (relative to a limited liability company), the transferor's main obligation is to hand over the equity to the transferee (specifically, to formally inform the company of the fact of equity transfer in writing and the intention to require the company to go through the formalities for changing the registration), and the transferee's main obligation is to pay the transferor the transfer money as agreed.

The transferor may provide false data and information in the process of equity transfer. In order to prevent such risks, the transferee may require the transferor to guarantee or provide guarantee for future disputes and debts that may be caused by its dishonest behavior, such as depositing a deposit with a notary office.

It is true that in the course of the transaction, the transferee may not perform or not fully perform the obligation to pay the consideration for the equity transfer. To this end, the transferor may clearly stipulate the scope and calculation method of compensation for breach of contract in the equity transfer contract, and the transferor may also require the transferee to guarantee or provide guarantee.

3. The equity transfer contract shall not violate the mandatory provisions of laws and articles of association.

The law prohibits and rejects any contractual arrangement that circumvents the law. If a shareholder wants to successfully transfer all or part of his equity, the transferee wants to successfully acquire all or part of his equity and become a new shareholder. When designing the equity transfer contract.

We must pay attention to the provisions of laws, regulations and articles of association on the transfer subject, content and procedures, and abide by the Company Law, Contract Law, General Principles of Civil Law and other relevant provisions of the articles of association.

Civil and commercial law network-identification and prevention of legal risks in company equity transfer