A Study On The Restriction Of Defective Shareholders' Rights

Investment is most basic obligation of shareholders to the company, and it is alsothe effective protection of creditor to guarantee the transaction with the company. Butit cannot be ignored that, at present in our country, defective capital contribution ofshareholders make serious damage to other shareholders of the company, the creditorsand the company’s independent personality of the legal person’s rights and interests aswell as China’s business environment and good order. It is necessary to givecorresponding punishment to the shareholders who make defective capitalcontribution, which in the author’s view that can be attributed to the defective capitalcontribution of shareholders to bear the responsibility and right restriction. This papermainly discusses the limit of the rights of shareholders who make defectivecontribution. This paper can be divided into three parts exclude of the introductionand conclusion.The first part gives the definition of capital contribution and the shareholdersdefective capital contribution, which discussed the defects of contribution ofshareholder qualification cognizance. This part starts with the concept by theshareholders, leads to the concept of defective capital contribution and its form ofexpression, which can be divided into failure of contribution and improper fulfillmentof contribution. The failure of investment can be divided, into refusing capitalcontribution, false capital contribution and withdrawing capital etc. Improperfulfillment of contribution can be divided into the incomplete performance, delay inperformance or capital defects. This part focuses on non monetary capital contributionflaw, and discusses on that the shareholders who make defective capital contributionshould get identity affirmation.The second part mainly illustrates the basic theory of harm and limits the rights ofthe shareholders who make defective capital contribution. Firstly, the author analysesthe harm of the shareholders who make defective capital contribution, the harm to thecompany, to other shareholders, creditors of the company, and then describes thetheoretical basis for restrictions on the right of defective shareholders in company law,including the principle of equality of shareholders, the rights and obligations of theprinciple of reciprocity and the original and fruits, which theory need to follow.The third part mainly expounds the contents and paths to set limits to the rights ofthe shareholders who make defective capital contribution. Firstly, the author discusseswhen the defective capital contribution of shareholders, the shareholders rights whichshould be limited, which rights unnecessary restrictions. The author believes that, thedividend distribution of the defective capital contribution of shareholders, the distribution of surplus property claim, preemptive rights, voting rights, equity transferrights should be limited, such as the temporary proposal right, subrogation litigationrights need not be restricted. Secondly, in order to limit the defective capitalcontribution of shareholders rights, the author thinks that can be limited by law, thearticles of association of the company, a resolution of the shareholders’ meeting etc..The resolution of the shareholders’ meeting can realize the legislative, the articles ofassociation of the company in the operation of corporations.