Study On Our Country's Shareholder's Inspection Right Of The Accounting Book

The inspection right of the accounting books is an inherent right of a shareholder, which is not only the core of the shareholder's information rights system, but also the premise and foundation of shareholder's other rights. The separation of ownership and management of a company can lead to information asymmetry between shareholders and the executives, shareholder's inspection right of the accounting books provide a means that enables the shareholders to sufficiently get the information about the company management, and to examine the executives'diligence and loyalty at the same time. Nowadays the accounting information distortion is getting worse and worse, therefore, to expand the shareholder's inspection right, thus to enhance the protection of the interests of investors becomes the choice of legislation worldwide. The 1993 "Company law" has provided shareholders'with the access to some bookkeeping documents such as the minutes of the shareholders meeting, and the corporate charter, but does not provide the core access to the accounting books. The 2005 "Company Law" conforms to the legislative trends to expand the inspection right with the introduction of shareholders'inspection right of accounting books in limited liability companies. This is a progress in our country's legislation, however, that only one clause is still too weak and vague. The lack of the necessary formulations and relevant judicial explications, such as the definition of the special shareholder's inspection right of the accounting books, the procedures of the performance and its juridical remedies, and the "legitimate purpose" to perform the right, has led to a set of uncertainty when it comes to the practical exercise of the shareholder's right. The author conducted a deep study of shareholder's inspection right of the accounting book, based on the 2005 "Company Law" and the trial of cases in practice. This dissertation is divided into five chapters.The first chapter is an overview of the shareholder's inspection right of the accounting book. Shareholder's inspection right of the accounting books is shareholder's right to look up the company's financial accounting books and other book-keeping documents, and is initiated whenever there occurs a breach of the company's reporting obligations or when the shareholders have enough reasons to suspect that reporting obligation is violated and the company is providing false information. It is a second-level right in the information rights protection system, and is in the core position. Shareholder's inspection right of the accounting books is an Inherent right, and has the properties of both altruistic and self-interested rights. The 2005 "Company Law" has introduced shareholders'inspection right of accounting books in limited liability companies, but the lack of legislation remains in stock limited corporations.The second chapter is on the conductor of shareholder's inspection right of the accounting books. Shareholder is the conductor of shareholder's inspection right of the accounting books. Our legislation does not specify the concept of the company shareholders or its criteria, And there has been controversial ideas in practical cases when it comes to determine whether some special shareholders has the right of inspection, such as the capital-defective investor, the dormant shareholder, the nominal shareholder, and the shareholder who has already transferred his share. Based on the trial of cases in our country, I maintain that the nominal shareholder and the capital-defective investor enjoy the shareholder's inspection right of the accounting books, while the dormant partner and the shareholder who has already transferred his share do not.The third chapter is on the object range of shareholder's inspection right of the accounting books. Foreign legislation on this subject generally include the register of shareholders, corporate charter, minutes of meetings of shareholders, board of directors (supervisory board) meeting records, accounting books, as well as such information of its subsidiaries. Based on the trial of cases of company law, I make a thorough inquiry of several objects that is controversial either in theory or in practice, and reach a conclusion in the end. The fourth chapter is on the reasonable restrictions for shareholder's inspection right of the accounting books. There are different reasonable restrictions for shareholder's inspection right of the accounting books, generally from two aspects, subjectively and objectively. Most countries have been gradually liberalized about the original objective conditions that the conductor's share amount must reach a certain ratio and persist for a certain time. I maintain that there should not be objective restrictions for limited liability company, however, we should set objective restrictions for stock limited corporation in future legislation. Different countries adopt different legislative models for subjective restrictions. Taking reference from foreign statutes and trial of cases, I introduce the criterion to determine the "legitimate purpose".The fifth chapter is on procedures of the shareholder's performance of the right of inspection and its judicial remedies. The procedures of the shareholder's performance of the right of inspection are divided into three stages, the company providing access to the accounting books for the shareholders. I analyzed several issues that we should pay attention to in relevant lawsuits, such as the pre-litigation procedure, the accused the lawsuit, and the pre-litigation or litigation evidence preservation, are proposed the advice to introduce third party review system and recommend ways of improving juridical remedies.The innovation of this dissertation is that it clearly defines the shareholder's inspection right of the accounting books, and determine its core position as the second-level right of in the system, starting from examining the hierarchy of the shareholder's information rights protection system. It also refers to the "revised draft" of the 2005 "Company Law" before its promulgation, explores the legislative intent, in order to get a better and more situational understanding of the system. The 2006 "Accounting Standards" and relevant accounting knowledge are also fully considered to study the financial issues of the related parent companies. Meanwhile, the author did empirical analysis on the controversial issues of the shareholder's inspection right of the accounting books based on the influential practical trials of cases, and strive in all means to qualify this paper with practical value.