On The Inheritance Of The Limited Liability Company's Equity

Inheriting the shareholder's right is one kind of specific act occurring because of shareholder's death during the company existing. The stock limited company is the integration of capital company, whose shareholder's right can be transferred freely and can be inherited freely and certainly, but the limited liability company is the integration of human and capital company, whose shareholder's right being inherited is restricted certainly in two kinds company forms regulated by our country corporate law.Our country Corporate Law has been newly revised in 2005 and Article 76 in Chapter Three the Shareholder's Right to Transfer in Limited Liability Company has stipulated not only a shareholder qualification can being inherited but also the function of articles of association through the proviso. The thesis combines Article 76 and analyses and discusses the problem on the inheriting the shareholder's right of the limited liability company. The thesis is expounded in four parts as the quality of shareholder's right, shareholder's right being the object of inheritance, relevant questions of inheriting the shareholder's right and the function of articles of association.In the first part, the author analyse the theory of the quality of shareholder's right and the concept of shareholder's right of the limited liability company. There are different opinions on the quality of shareholder's right. The author choose the representative theories and elaborate and analyse as Ownership Theory, Creditor's Right Theory, Mitgliedschaftsrecht Membership's right Theory, Independent New Kind Civil Right Theory. Although there is no lack of many good points in the first three kind of theories, but they are biased, and can not reflect the shareholder's right essence really. The author agree the last theory. The shareholder's right is a kind of independent comprehensive right include beneficial right and procedural right and it is the combination of aim right and means right. There are no precise definitions on the relevant concept as shareholder, shareholder qualification, share, shareholder's right in our country corporate law but they are close relationship. Only possessing the share, possessing the shareholder qualification, then one people becomes a shareholder and has the shareholder's right. The shareholder is the subject of shareholder's right and share is the objective carrier of shareholder's right.In the second part, the author discuss it being suitable that the shareholder's right is the object of inheritance. The thesis focuses on the characteristic and the range of the heritage as the object of the ordinary inheritance relationship and considers that shareholder's right can be inherited because it likes heritage and has characteristic such as time specificity, property, inclusion, limit, validity, and indivisibility, transferable. At the same time the thesis quotes and lists the laws on inheriting the shareholder's right of abroad and domestic, discusses the inheritability of shareholder's right and the restrictive function of the articles of association on the legislation.In the third part, the author do some research on three relevant questions of inheriting the shareholder's right. First, the author study the question on inheriting investment and shareholder qualification. In limited liability company inheriting investment is the legal and unconditional property inheritance. Based on the integration of human of limited liability company, inheriting investment but not obtaining shareholder qualification certainly. The heir of investment will obtain the shareholder qualification after he puts the share inherited into the company agreed by other shareholders and performs the relevant procedure. Of course the articles of association can prescribe proviso. Secondly, the author study on the two rights' relationship, beneficial right and procedural right. They are complement each other and inalienable although they have differences in the ways of exertion and requirements. The procedural right ensures the beneficial right. Finally, the author compare the pros and cons of the three form of inheriting share such as transferring compulsively, inheriting freely, inheriting limitedly and think inheriting freely would be more suitable.In the fourth part, the author mainly discuss the function of articles of association of limited liability company in inheriting the shareholder's right. The articles of association is the company's mini-constitution and is the base and the embodiment of shareholders' and company's idea autonomy. The articles of association can limit the heir of investment obtaining the shareholder qualification and limit inheriting the shareholder's right by way of excluding, restriction. For the benefit of the company, the articles of association can stipulate that a person without civil legal capacity or a person with limited civil legal capacity can't obtain the shareholder qualification although he has inherited the share. In order to protect company's interests, the articles of association can make restrictions to divide the shareholder's right inherited. The articles of association can stipulate that the shareholder's right would be inherited by any one among the heirs, or would be had to divide into several, or would be divided according to specified proportion if it appears that several heirs inherit commonly in inheriting the shareholder's right. The formulation of the articles of association of limited liability company should take account of the integration of capital and human. A complete articles of association can promote the company's development healthily and orderly.