Pravni režim ograničenja prenosa udela u društvu sa ograničenom odgovornošću

The share capital of a limited liability company is expressed in shares which do not have the nature of securities, which affects the nature of their relative non-tradability. Nevertheless, in principle, shares are in free circulation as a rule, but on an autonomous basis or by the law itself, certain institutes of restrictions on the transfer of shares can be introduced. This paper analyses various forms of modalities of identified restrictions on the share transfer in this company, established by the law governing companies: pre-emptive right to purchase shares of existing company members, company consent to share transfer, company right to determine a buyer of shares, inheritance law regime of the share transfer, as well as the nullity of share transfer agreement and specificity of the share transfer regime in restricted public sale procedure, enforcement procedure and procedure of out-of-court settlement under conditions of the share transfer restrictions. Regarding the key open question of whether the regime of restrictions on the share transfer by the right of pre-emption of company members applies only to the sale of shares or other legal transactions of share disposal (especially disposal without consideration), the position is stated that this regime, due to relatively closed nature of a limited liability company, applies to all legal transactions of share disposal, if the existence of the modality of this restriction on share disposal is not excluded or limited by the memorandum of association of a company. Finally, the author expresses the position that the restriction on the transfer of shares of this company related to the right of pre-emption (or acquisition) is a presumed legal restriction if it is not explicitly excluded or limited by the memorandum of association, as well as the position that it is possible to introduce other non-identified restrictions on the transfer of shares on an autonomous basis (pre-emptive right to purchase or acquire by the company, concept narrowing of a third party, impossibility of excluding this right in certain cases, etc.).