Research On Capital Right

The two goals of continuously optimizing the business environment and curbing the disorderly expansion of capital both require the standardization and orderly realization of capital operation and its interests.At the level of commercial law,the natural choice for the rule of law,standardization and institutionalization of capital operation and its interests is capital rightsization.The introduction of Article125 of the Civil Code marked the long-absent capital rights in our country gaining their rightful and statutory status in the Basic Law of the State,and is a declarative legislative expression of the State’s righting of capital.The essence of equity and other investment rights is the right to capital.Capital right is an exclusive right that the investment subject should enjoy based on the implementation of investment behavior.It presents many different features compared with traditional property rights both as a new independent civil right and as an independent and fundamental commercial right.The unit of measurement of the capital right is capital,the realization of the right is expected,the essence of the right is capital appreciation interest,the purpose of the right is profitable,and the right is subordinated to the right.The ethical legitimacy of the self-interest and profit-seeking purpose of the investment subject provides the justification basis for the creation of the right to capital.The urgent need to guarantee the right to the continuation of human life as well as the right to economic development lays the foundation of human rights guarantee for the establishment of the right to capital.The establishment of the right to capital is a natural choice that follows the logic of freedom rights →economic freedom →freedom of property →freedom of business →freedom of investment→right to capital " in the Constitution.The core concept of commercial law is to guarantee the realization of the profit maximization of commercial subjects,which determines that it should build an institutional system with the core of confirming and guaranteeing the standardized and orderly exercise of capital rights.The establishment of capital rights is the best choice to meet the demand of capital-based interest protection tendency of modern commercial law.From the perspective of legal game analysis,the establishment of capital rights is a rational choice of commercial law to balance the interests of multiple subjects involved in the process of investment.From the perspective of legal economic analysis,capital rights,as an independent commercial right,can save the cost of maintaining the security of investment interests and indirectly promote the important role of the expected return on investment.The capital right concentrates on the four values of commercial investment priority,freedom of business,investment security,and investment equity.The right to capital is essentially a private law right to freedom of property,as well as an economic human right,or a free extension of the constitutional right to freedom in the field of commercial law,but also an independent commercial right.In addition,capital rights have the dual attributes of both positive and negative rights.Among the fourfold structure of commercial rights,the investment commercial right,i.e.,the capital right,is the most primary,basic,fundamental and important commercial right,and is the logical starting point for linking the opportunity commercial right as the original right,as well as the basic right that drives the formation of the business commercial right and the transaction commercial right.The evolution of capital rights follows the evolutionary logic of property rights→capitalization of property → capitalization of property rights → securitization of capital rights→digitalization of securities rights.The subject of capital right has the dual identity attributes of civil subject and investment subject.Not all civil subjects are subjects of the right to capital.The reference factors that the law restricts the eligibility of the subject of capital right include but not limited to: identity,locality,age,civil capacity,investment capacity,affiliation,domicile and nationality,etc.The acquisition method of the subject qualification of capital right includes original acquisition and succession acquisition.The object of the right of capital is the investment capital or capital interest formed by the valorization and capitalization of the original property or property rights invested by the civil subject.The power of capital right is the unity of purpose and means power,request and dominant power,group and individual power.Capital rights cover two basic types of structures,equity and capital rights:the internal structure of equity covers self-interest and co-interest rights;while the internal structure of capital rights covers capital control rights and residual claims.The content structure of capital rights mainly consists of investment income rights,voting rights,investment decision rights,investment information rights,investment share disposal rights,investment priority rights,and investment appeal rights.The form of capital rights contains a triple logical structure of due capital rights,statutory capital rights,and contingent capital rights.From the perspective of the nature of rights,equity,partnership rights in partnership enterprises,rights of business owners,and rights of fund share holders are typical statutory capital rights,while membership rights of cooperative enterprises and membership rights of rural collective economic organizations are quasi-capital rights.The exercise of capital rights by capital right holders should follow the principles of lawful,free and good faith exercise,and the exercise of their rights should be restricted.The theory of labor value,the theory of prohibition of abuse of rights and the theory of balance of interests provide the theoretical basis for the restriction of the exercise of capital rights.The factors that can be referred to by commercial law to impose restrictions on the exercise of capital rights include,but are not limited to,national interest,social public interest,social morality and ethics,and corporate social responsibility.Labor rights,commercial claims,business rights,and taxing rights all impose certain restrictions on the exercise of capital rights.In view of the problem of untimely and inadequate capital rights remedies,China can refer to the common law securities group litigation model,enhance the status of the representative litigation remedy model in the capital rights remedies in securities infringement,expand the scope of the securities group litigation representative qualification,allowing lawyers as litigation representatives,so as to overcome the existing In addition,the scope of the representative of securities group litigation should be expanded,and lawyers should be allowed to act as representatives of litigation,so as to overcome the shortcomings of the existing capital rights remedy model.The principle of attribution of liability for capital rights damages in China should be dominated by the principle of fault liability and supported by the principle of no-fault or presumption of fault,so as to build up an orderly arrangement of the principle of attribution of liability for capital rights damages.Under the perspective of optimizing the business environment,the improvement of China’s capital rights remedy system should establish the standard of timely,adequate and effective remedy,carry out fair competition review for the abuse of administrative power to damage capital rights,and introduce the punitive compensation mechanism for infringement of capital rights,so as to better remedy the investment interests of capital rights holders.