The Analysis On Membership Of Limited Liability Company

The goal of this dissertation is to make autonomy the primary values and attempt to construct the fair and effective membership mechanism of limited liability company's membership with three questions answered. The first is what the values are and what these should be. The second is what the mechanism is and what it should be. And the last is how the values and mechanism affect some practical issues. This dissertation use autonomy as the purports which as a basic point, regulation as a outline point, attempts to abide by this kind of thinking:based on the point that the autonomy can achieve the function of membership mechanism of limited cooperation, the author review the theory basis and practical foundation for both original acquirement and non-original acquirement, demonstrating on the dimension of autonomy and its legislative limits, expounding the connection between freedom and legislation, finally exploring the some practical issues which related with membership.Except introduction, this dissertation is divided into six chapters and main contents of each are as follows:Chapter 1 start with the concept of member and membership, illustrate the differences among membership with legal capacity,personality,shareholder rights and equity, clearance connotation and epitaxial of the membership, and locate its position and function among the whole company law. Drawing support from that, the author review many principles and claim that should give respect for autonomy, which has been injected rationality. Then the author intend to find the explanatory power from the economic analysis of law and sociological analysis of law, and illustrate the progressive combined the mechanism itself.The intention of chapter 2 is to list systematically foreign enactment of legislation about membership, analyze the pros and cons and point out whatever common law or civil law, whatever formulate company law historically or reform company law recently, both insist on the idea of protecting agreement between investors and company, just the limited extent differs from one to another. Then reveal the confusion of legislation and judgment, suggest that should pay effective attention to the affect of agreement between investors and company and try to set up corresponding theory system.Chapter 3 starts with itemized discuss the legal basis of limited liability company's membership when it comes to the original acquirement and its legal meaning, in the meaning of theory, demonstrate that article of company should been considered as the core evidence while reasonably locate the publicity power of registration system for article of company. The book of member from Limited liability company only possess the force to protect the mean from members, not that from company, the book only have force of presumption but not of determination.Chapter 4 pays close attention to the non-original acquirement of membership. Article of company, as the charter in company, would restrict the efficiency of transferring equity, therefore its reasonability as core evidence would be questioned. During the process of non-original acquirement, identify the agreement between transfer and transferee as effective evidence, the content of member book or the agreement of all else members as counterwork for company, the modification of registration as counterwork for third party. This chapter also discuss special rule for assure the membership when transferring equity occurs in foreign enterprises and state-owned enterprises, and point out that article of company will protect the mean of the decedent and coordinate internal connection. When it comes to divorce case, the author insist on the couple should hold a kind of co-ownership membership and set up general rule for that.The missing of LLC's membership is the emphasis of chapter 5. The autonomy is still the philosophy of law for the appraisal rights for dissent shareholders and appraisal rights to dismissing company. But law will intervene more the process of autonomy between members and company according to the requirements of internal connection and capital credit. The dissertation attempts to search dimensions between freedom and enforcement from the aspect of subject,program and reasons, and decide to restrict the autonomy with reason. In chapter 6, the author intends to quest how to identify the membership of anonymous investors, construct the evidence system constituted of premise term,effective term,counterwork for company and for third party. In case confirm the membership of anonymous investors, should identify the co-ownership with registered investors, meanwhile should not ignore the important effect of registration. Divide defective investment into two kinds, serious and general, and insist on that general investors could acquire membership when in accordance with other factors. Based on the legal idea and legislation of Germany ESOP, discuss legal relationship between ESOP and membership, reiterate positive significance of evidence system including effective factor,counterwork for company and for third party.