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Legal Protection Of The Anticipation Interest Of Shareholder In The Limited Liability Corporation

Posted on:2008-05-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:X G ZhaoFull Text:PDF
GTID:1116360215990039Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
As an independent enterprise legal forms, Limited Liability Corporation widens the choice for the investor by connecting the purely person-depending enterprise and the purely capital-depending enterprise. During its development for over one hundred years, Limited Liability Corporation contributed greatly to the economy, and its legal system is gradually perfected. However, comparative to the long evolution history of the other enterprise legal forms, its history is too short; further, because of its inherent shortcoming, its legitimacy is always subject to be doubted theoretically, and in theory, Limited Liability Corporation faces maintaining or abolishing. Therefore, annotating Limited Liability Corporation rationally and reviewing the building of the legal system have significance not only to the perfection of the corporate legislation, but also to the corporate social and economic function.From the beginning, Limited Liability Corporation adopted some attributes of the Stock Limited Liability Corporation and some attributes of the partnership enterprise to put up its modal advantage in practice, and just the advantage corresponds to the particular demands of some investors. The virtue of the the legal system supply just lies in the choice of the investor to realize his anticipation interest. Therefore, the building of the legal system must sufficiently maintain the anticipation interest of the stockholder of Limited Liability Corporation; thereby, Limited Liability Corporation exerts its important function as an independent enterprise legal form in the ecology of the enterprise organizational forms. The investor chooses Limited Liability Corporation, not only because of the derect profit considering from the risk and liability, but also because of the employ interest and management interest from the enterprise.But the anticipation interest of the investor in Limited Liability Corporation is subjective forecast,valuation and expectation of the future corporate management based on the limited information; Moreover, because of its own limit and the interest conflict of the shareholder, the realization of the anticipation interest is not a natural process. By contrast, there are some obstacles in the system and the practice. Therefore, the law must banlance various interests related to the anticipation interest of the shareholder, protect and realize the anticipation interest of the shareholder as possible. Although to some extent, the shareholder can resolve the interest conflict himself, but it is nessary for the law to keep appropriate intervention. So beyond the ability and scope of self relief, the law and the court should provide appropriate relief. The German court only rely on the dissolution as the last resort, but created withdrawal and expulsion, while the dissolution is also the last relief in America, and buyout, fiduciary duty, arbitration and other remedies were developed in the court. The essential of the two Legal Systems remedy is to balance the interest in the corporation, and the judging standard in the legislation and judicatory for remedy is to protect the reasonable expectation after balancing the interests.For exerting the avail of the Limited Liability Corporation sufficiently, we also must perfect the legal system of Limited Liability Corporation by using the reasonable expectation as the standard to the interest balance and judgment. Reviewing our corporation system from this perspective, the legislation must face the natural attribute of Limited Liability Corporation, and limit the excessive intervention to respect the investor, that is, the primacy and standard of the investor. In the judicial practice, we should be cautious to resolve the interest conflict of the shareholder validly. In the building of specific system, we must promote the shareholder to maintain the interest balance in the corporation and outside the corporation self-consciously. And maybe the dividend distributing system and the remedy system for the deadlock are the directest systems correlative to the shareholder interest protection. Dividend oppression makes the anticipation interest of the oppressed shareholder frustrated, he is difficult to retreat from the corporation, his investment and income in the corporation is locked-up for the restriction of the share. The deadlock not only makes the anticipation interest facing unavoidable loss, but also restrains the corporation creat wealth for the society. Therefore, from the anticipation interest perspective, our Limited Liability Corporation legal system must perfect the the dividend distributing system and the remedy system of deadlock.
Keywords/Search Tags:Limited Liability Corporation, enterprise legal form, anticipation interest, reasonable expectation
PDF Full Text Request
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