Expulsion and Valuation Clauses - Freedom of Contract vs. Legal Paternalism in German Partnership and Close Corporation Law

過去我國實務見解始終否認公司得發行複數表決權特別股，2015年公司法正式引進閉鎖性公司專節後，方承認閉鎖性公司得發行複數表決權特別股，更進一步，2018年修法時放寬至非公開發行之一般股份有限公司均得適用，逐步提供閉鎖性公司及非公開發行公司股權規劃上有更彈性的空間，以符合現今鬆綁管制之國際趨勢，並有利於新創事業籌集資金。本文首先介紹我國特別股規定之演進過程，並討論增訂複數表決權規定後於公司法後將發生之問題，進而介紹美國法相關制度之運作及公司實務之作法作為借鏡，最後歸納數項修正方向建議，以其複數表決制度之適用能更加完備。In the past, the opinions of the courts in Taiwan have always denied that the corporations could issue multiple voting rights shares. Until 2015, the Corporation Law in Taiwan finally amended to include “Close Corporation Section”, it was acknowledged close corporations could issue multiple voting right shares. Moreover, the rules applied to non-public corporations after the amendment of the Corporation Law in 2018, gradually providing more flexible space for the equity planning in close corporations and non-public corporations. The amendment of multiple voting right shares is also in line with the current trend of the world to ease restrictions. The article first introduces the evolution of the rules of preferred stocks, and discussed the problems that may occur after the amendment of multiple voting right shares. Furthermore, it would make a thorough inquiry into the practice of multiple voting right shares in America to conclude some suggestions for the legal system in Taiwan.

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Corporations. In General. Florida Legislature Enacts Close Corporation Law. Fla. Laws 1963, Ch. 63-379

Harvard Law Review ◽

10.2307/1339171 ◽

1964 ◽

Vol 77 (8) ◽

pp. 1551 ◽

Cited By ~ 13

Keyword(s):

Corporation Law ◽

Close Corporation

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ON CONSTRUCT OF THE RIGHT OF PRE-EMPTION IN RESPECT OF PARTICIPATORY INTEREST (SHARES)

Civil Law Review ◽

10.24031/1992-2043-2020-20-4-94-219 ◽

2020 ◽

Vol 20 (4) ◽

pp. 94-219

Author(s):

I.S. CHUPRUNOV

Keyword(s):

General Rule ◽

Constitutive Theory ◽

Freedom Of Contract ◽

Legal Nature ◽

Public Corporation ◽

Russian Law ◽

Right Of First Refusal ◽

The Right

The paper provides analysis of the legal nature and the mechanism for exercise of the right of pre-emption (right of first refusal) in respect of execution of a contract taking as an example of right of first refusal to purchase a stake in a non-public corporation, and also examines the boundaries of parties’ autonomy and freedom of contract in this area. The author comes to the conclusion that the key elements of the construction of the right of pre-emption are the transformation powers that belong to the right holder. The author also demonstrates that, notwithstanding their dominance in Russian law, the views, which suggest that exercise of the right of pre-emption leads to “transfer of rights and obligations of a purchaser” (the translative theory), should be rejected. These views must be replaced with the constitutive theory, according to which exercise of the right of pre-emption results in a new contract between the right holder and the seller (as a general rule, on the same terms that were agreed between the seller and the purchaser).

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ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

JURNAL HUKUM DAN PERADILAN ◽

10.25216/jhp.3.1.2014.69-84 ◽

2018 ◽

Vol 3 (1) ◽

pp. 69

Author(s):

Edi Hudiata

Keyword(s):

Dispute Resolution ◽

Judicial Review ◽

Alternative Dispute Resolution ◽

Contract Law ◽

Islamic Banking ◽

Constitutional Court ◽

Legal Certainty ◽

Ideal Norm ◽

Freedom Of Contract ◽

Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

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