Controlling Shareholder Of The Obligations And Responsibilities

Limited Liability Company's shareholder qualifications confirmation dispute, is a big difficulty in our national judicature practice, and is also one of the hot topics under discussion . Since 1996, with the execution of"Corporation Law ", especially the limited liability company registered capital lowest quota large scale reduces, the number of company rises fast, the concerned shareholder qualifications recognized dispute also rise with it. The reasons are as follows. Firstly, the present "corporation Law" is problematic. On the one hand, some relevant regulations are not clearly presented, like the " corporation Law", which has stipulated the confirmation limited liability company shareholder qualifications and other related important documents, like shareholder register of names, articles of incorporation, investment certificate and so on, but the law has not made explicit the regulations in the case of the need to recognize shareholder qualification in conflict; On the other hand, although it is clear, it does not abide by the legal principle theory of law. For example, there is the theory that"the shareholder qualifications are inheritable". Secondly, the company doesn't function according to particular standards. Some companies which have undergone transformation neither changed the shareholder register of names promptly, nor applied for the change registration. What is more, some companies have no shareholder register of names at all. Thirdly, the investment behavior is not standard. For example, some investors, for all sorts of reasons, are not willing enter their names in the shareholder register of names, though they actually invests; Because some the investment not reality, the investment insufficient or pulls out escapes the capital and so on to have the slight defect stockholder's rights, after these have the slight defect stockholder's rights in the transfer, can bring the question which this stockholder's rights grantee's shareholder qualifications recognized. Fourthly, during the period when shareholder's civil legal act in the company not to gather the law or the articles of incorporation, if the stockholder's rights transfer pressing has not decided the procedure or the articles of incorporation stipulation carries on. In view of above problems, the author combed and summarized the confirmation of limited liability company shareholder qualifications principle of equality from the aspects of shareholder, the stockholder's rights, the shareholder qualifications and other basic concepts and proposed his own viewpoint, namely the formal elements had the estimation potency regarding the shareholder qualifications confirmation. On this foundation, a synthesis of research techniques and comparison test is used to study the following questions one by one: the first is about the stockholder's rights transfer shareholder qualifications recognition question. The second is concerned with the stock inheritance shareholder qualifications recognition question. The third is the anonymous shareholder's qualifications recognition question.The author claims, based on the research, that first, recognition of the stockholder's rights transfer in shareholder qualifications, within the existing legal framework, the stockholder's rights are suitably seen as"the potency treats decides". From the legislation angle, in order to avoid divergence which may result from different understanding of the nature of stockholder's rights transfer contract and to guide company to further standard own behavior, we may adopt the practices in France and Britain and make valid the contracts which violates stockholder's rights transfer procedures. In the case of legitimate stockholder's rights transfer contract, for the convenience of operation and the judgment, we may adopt the German, Japanese practices as well as the English legislation example, taking changes in the articles of incorporation as the symbol. Next, the theory that"the shareholder qualifications are inheritable"not only disobeys "Inheritance law", but also contradicts"Corporation Law"and the civil law. We should adopt the theory that"the stock is inheritable", to protect the human nature of the limited liability company. To put it clear, whether the inheritance stock person obtain the company the shareholder qualifications is on the one hand decided by the successor's attitude, on the other hand by other shareholder's attitudes. Third, as for anonymous shareholder qualifications recognition, there are two exceptions to estimation potency foundation. One is that anonymous shareholders cannot be recognizes as having the company shareholder qualifications; the other is that anonymous shareholders which actually control the human for the company, cannot recognized as having the company shareholder qualifications.In brief, this research is for the purpose of seeking the solution to the above questions from the theoretical perspective, and of putting forward proposal on how to further consummate the national Corporation legal regime.