Shareholders' Removal Of The Right To Legal Research

The right of expulsion of shareholders is a very important regime in the corporation law.When the comportments or the personal circumstances of the shareholders obstruct or influence seriously the development of the corporation and the common interest of the other shareholders,it becomes a natural requirement and regime arrangement to eliminate the negative influence of determined shareholders and to avoid the aggravation of the internal contradictions and conflicts in order to maintain the existence and continuous development and consequently,to safeguard the common interest of the other shareholders.This is exactly the starting point and the final conclusion of the thesis.The historic evolution and the development and its most recent change tendency of the regime of expulsion of shareholders proves that this regime has originated from the companies with"intuitus persone",as exceptions to the dissolution of the companies.Later,because of its special regulation function and protective role,it has expanded gradually the ambition of application and established its frontiers with some other mechanisms of conflicts.Until now it has become a general regime that applies in all kinds of companies.The thesis draws its conclusion just from the historic research of the origination and development of the regime and proves that there are necessities and possibilities to establish and apply the regime not only in the companies with"intuitus persone",but also in the capital companies,notwithstanding it has different forms of manifestation and different mechanisms to function.As to the legal method,the thesis expounds the legal characteristics and its connection with "intuitus persone"of the regime from the general theory of the right of expulsion.It explores the relevant doctrines and its jurisprudential bases and reveals the interest relationships to be regulated and protected with view to provide the theoretical foundations necessary for the further research of the regime. Based on this,the thesis does some researches about the regime in the companies with"intuitus persone"and makes a survey of its origin and contemporary development.It describes the tendency of the developments and changes of the regime and also explains the legal cause of expulsion. No matter it was the nonperformance or the alteration of the personal circumstances,it will be considered as legal cause of expulsion whenever it obstructs or influences gravely the interest of the company and the other shareholdersAs a mechanism destinated to resolve the internal and structural contradictions existing in the company,the regime has its necessities and possibilities of applications also in the capital companies and this is determined by the universality of the interests conflicts.Although the comportments or the personal circumstances of the shareholders influence the capital company differently from they do in the company with"intuitus persone",probably there are some "intuitus persone" also in the capital company introduced by means of the shareholders'autonomy or because of the company's own characteres,providing the factual presupposition essential for the application of the regime of expulsion.Therefore,there are necessities and possibilities of establishment and application of the regime of expulsion both in the limited company and in the stock company.On the other hand,the acquisition and the lost of the shareholder's qualification in the capital company is different from that in the company with"intuitus persone",meanwhile the types and the ambitions of the shareholder's obligations in the capital company differ from in the company with"intuitus persone".As a result of the differences mentioned above,the constitution of regime of expulsion in the capital company is different from the regime existing in the company with"intuitus persone",but this does not impede to consider the regime of expulsion as a unitary regime in the corporation law. The thesis makes a specific analysis on the regime of expulsion in the capital company,especially focus on the regime of expulsion in the stock company for the purpose to prove the universality of application of the regime.The regime of expulsion should be framed to keep balance of the expelled shareholders' interest and the common interest of the other shareholders,giving priority to protect the common interest of the other shareholders.Accordingly,as a whole regime,it includes the factual presupposition essential for the application of the regime of expulsion,the procedure of the exercise of the right and the consequences of exercising such right.The following chapters will concentrate on these three aspects.The execise of the right of expulsion depends necessarily on the factual presupposition.The shareholder can be expelled from the company only in the circumstances in which exists a determined expulsion cause and the expulsion cause must be serious sufficiently and has connection with the determined shareholder and there is no alternative solution to the problem.The shareholders can stipulate some expulsion causes in the company contract or in the company charter and this must conform to the determined requisites and cannot transcend the limits of the autonomy.The thesis will discuss some problems related with the stipulation of expulsion causes,including the expulsion clause without cause,the clause to exclude the legal expulsion cause and the problem whether a shareholder can be expelled from the company by reason of the just cause and without any legal or stipulated expulsion cause.The exercise of the expulsion right must abide by the expulsion procedure.The thesis will make specific analysis on the several expulsion procedures existing in the civil law system,including the expulsion procedure of resolution,the expulsion procedure of judicial sentence and the automatic expulsion procedure,meanwhile it also investigates some relevant problems pertinent with the shareholders' status in the expulsion procedure.The principal legal effect of the exercise of the expulsion right is the loss of the shareholder's qualification and the status,but to determine when the expelled shareholder lose his qualification depends on the concrete analysis of the situations of capital company and the company with"intuitus persone".How to dispose of the expelled shareholder's capital is another problem to be resolved by the expulsion regime.On the other hand,how to evaluate the shareholder's capital and to pay him the value he deserves is another important problem of the expulsion regime.