The Principle Of Equality Of Shareholders: Its Ontology And Realization

This dissertation regards the principle of equality of shareholders in Company Lawas the study object, the purpose of writing can be divided into two levels. The basiclevel is aim to clarify the main meaning for the principle of equality of shareholderswhich acting as the endogenous mechanisms in the legal sense through the study,demonstrate the great significance of equality of shareholders for corporate governanceand Company Law, explain the relevant specifications as well as rules formation inaccordance with the principle of equality of shareholders. The higher level is aim toenhance the theoretical character of the research to Company Law in China throughelaboration of the basic theory of the principle of equality of shareholders, meanwhile,to provide knowledge support and guidelines for the perfection of companies legalsystem.This dissertation deals with four important questions: the endogenous questions forequality of shareholders under company regulations; the ontology internal questions ofthe principle of equality of shareholders; the questions between conflict andcoordination under the principle of equality of shareholders and other value; therealization style questions of the principle of equality of shareholders in Company Law,They correspond with the following four chapters:Chapter One is the logical starting point of the whole dissertation, namely, clarifythe basic concept of specificating the relationship between shareholders which acted asthe equality of shareholders, it is endogenous to the corporate system. In the process ofpursuing personal interests in a company, the shareholder will spontaneously form acontractual relationship with other shareholders. Considering the stable psychologicaldemands of cooperation relationship between shareholders and the internal orders ofcompany, shareholders will develop a behavior standard applicable to shareholdersinternal groups in accordance with the common concept of justice. Relying on the analysis paradigm of "veil of ignorance" as well as discovering the concept of equalityof shareholders is implied in shareholders’ common concept of justice are basiccontent of common concept of justice. It is verified that the concept of equality isderived from endogenous mechanism rather than mandatory provision in the law. Afterjoined in the company actually, based on the purpose of personal fame and fortune, theshareholders who obtained a dominant position tend to choose some behavior strategyto destroy the concept that endogenous to company rules as always, thus to impact thecooperative relationship between the shareholders and company’s internal order. Insuch a case, it is need to introduce the equality of shareholders into Company Lawstandard to act as a basic principle, make equal protection to shareholders by means oflaw, to maintain the performance of equality of shareholders in the company. In thissense, the fundamental purpose of the principle of equality of shareholders of theCompany Law is to prompt shareholders groups virtuous spontaneous order.Chapter Two analyzes and expounds the principle of equality of shareholdersontology. Equality is a social ideal and chase exists in human society for a long time,which possesses the characteristics of protest demands. The concept of equality inpeople’s mind originated from observation and deep reflection of some injustice, thisreflection belongs to philosophical level largely. The rise of the neo-liberal made thephilosophical research theme transferred from freedom to equality, and provided manykinds of equal paradigm which concerned in establishment of basic social system. Itcan be includes equality of democracy, equality of opportunity and equality ofresources, etc. These paradigms provide theoretical background、thought path andreference standard for the formation of the concept of equality of shareholders.However, the expert of this concept is not absolutely copied by these paradigms.Combined with the practical needs of shareholders, the dissertation put forward aconcept of multiplex equality of shareholders, meanwhile, proposes five norms judgingequality of shareholders which include the freedom of the shareholders’ own behavior,the right to form, profit opportunities, the overall share of profit and the differenceprinciple standards, furthermore, respond to possible criticism. In addition, it also analyzes similar concept of equality of shareholders like “The Equitable Treatment ofShareholders,""shares equality","equity equality".Chapter Three defends the value level for the principle of equality of shareholders.When it exists on Company Law as a principal, it is bound to solve the coordinationwith other legal concept and values. The principle firstly possesses dependencies withshareholder democracy. The concept of shareholder democracy acts on the formationof the shareholders’ collective decision-making, its legitimacy is based on the supportof the majority party. The most difference in the decision-making connotation createsessentially difference between political democracy and economic democracy,especially between shareholders democracy in the process of formation. The lattermostly exist possibility of alienation due to the dependence on capital. While animportant sense of equality of shareholder is to conduct to shareholder democracy inalienation, play a role to improve the function. The principle of equality ofshareholders also conflicts with efficiency pursue, this remains as the epitome of thecontradiction between the social development in equality and efficiency in thecompany. Pursuing efficiency is the natural instincts of the company, the shareholdersjoined into the company just in order to chase personal interests efficiently. But onlypursues efficiency may lead to real unfair of shareholders’ interests, thus the properviewpoint should be remain as jointly promotion of shareholders’ interests andcompany’s efficiency.Chapter Four starts to explore the way of realization for equality of shareholderswithin the scope of Company Law and inspect it. The the path in the law realizeseveral level. Firstly, act as a value of declaration, the equality of shareholders is thebasic principle of Company Law with fundamental contents and fuzzy representations.For the present situation of Chinese Company Law, the author put forward his ownlegislative proposals. Secondly, the principle of equality of shareholders is legislativeguidelines of Company Law, it will be realized through distribution of basic rights andobligations of the shareholders as well as provides suitable foundation to shareholdersfor legal distinction. Furthermore, the principle of equality of shareholders is the case to the referee guidelines. When lack clear and specific legal norms to solve dispute, theprinciple of equality of shareholders shall assume the function of guiding theadministration of justice to make up for the loopholes in the law. Related to honesty&credibility and the prohibition of abuse of rights, the principle of equality ofshareholders is provided with priority and specificity when do judgment of invokinglegal principle. In the equality of shareholders suit, cases equitable is the basic goal,while eligible shareholders file the cancellable suit for unequal treatment ofshareholders behavior will be regards as the main way of legal equality andshareholders relief.