The Study On Congnizing Shareholders' Qualifition Of Limited Liability Companys

Shareholders qualification is the basis of acquiring and exercising the shareholder's rights and assuming the obligations of the shareholders, with the rapid development of market economy in China, the number of company is a growing and the scale is expanding unceasingly, the number of disputes of limited liability companys' shareholders' quanlifition is increasing, the type is diversifying, legal relationship is complicating, all these increase the difficulty of dealing by the court. The current establishment and operation of our country's limited liability company is not standard, the qualification cognizance of the shareholders is a issue which theory is not study thoroughly and often need to make judges in practice of the company law, the cognizance of the shareholders' qualification is a debate in the judicial practice, the judge has large discretion, always as adopting different standards to make the same case different result, and cause the disunity of justice. So the study on the cognizance of shareholders' quanlitiftion of limited liability companys in China has an important theoretical and practical significance. My text intends to study on the standard of cognizing of shareholders' qualitiftion of limited liability companys in our country on the basis of related theory and law, through analyzing the theory and practice about different standards of shareholders' qualitiftion of limited liability companys, combined "company law" judicial explanation three, confine a clear unified standards, so as to make the theory to be more perfect, and provide some reference of cognizing of the shareholders' qualitifiton in the justice practice of discussing the dispute.My text is divided into four parts as follows:The first part,mainly tells of the general theory knowledge of shareholders' qualitfition of limited liability companys, the first is the define of limited liability companys' shareholders and shareholders' qualification,and points out that the shareholders' qualitifition of limited liability companys is a possibility of enjoying the rights and assuming obligations about related subject, and tells the characteristics of shareholders' qualification of limited liability companys,and emphasizes the particularity of shareholders'qualitifition of limited liability companys.Second tells the legal significance of cognizing of shareholders' qualitifiton of limited liability companys. Then tell of major point of views about the shareholders' qualifition:the Substantial said, form said and double standard said. the obligation of capital contribution is the standard of Substantial said,, but most countries' legislation is not established shareholder invested and shareholders entitled to establish the corresponding relationship between one in practice commonly. Form said consider on the formal justice, aiming to indentify legal action more easily, but this against the autonomy of civil law principle. So with the development of the judicial practice, emerged a double standard said, disgusting the inside and outside relationship,I also agree more with this point of view, my text also used this kind of standard of identifying standard that is when cognize shareholders' qualitifition should disgusting the internal and external relationships, internal legal relationship, should adopt substantial condition said, external legal relationship should adopt formal condition said. At last, it points out that the basic principle of shareholders' qualitifition, which has leading function in the certain degree.The second part, this part tell of the substantial condition of cognizing of the shareholders' qualitifition of limited liability companys. First introduced the foreign legal practice and they sure shareholders qualified substantial requirements. Through the introduction of the United States, Germany, France, South Korea will help understand the related law practice in foreign investment in the qualification cognizance of the shareholders in the role. And then introduced the regulation about the Substantial condition of shareholders' qualifition in our country's law and practice, and then tell of view of the author on cognizing of shareholders' qualitifition of limited liability companys,the author thinks that the actual investment behavior can make investors in the company after the establishment of the original shareholders obtain qualification, but actual investment behavior and partner qualification is not one-to-one relationship. The third part, formal condition of cognizing shareholders' qualitifition of limited liability companys. The first part of the text introduces the form condition of it in American, British, German in their law and practice, the relevant provisions of the foreign can give some enlightenment in our country. Second tell of the specific regulation about it in our country's law. The last tell of the suggestion of the author for it, the author expounds the order of form condition in our country's law when dispute is between the other people and shareholders,between company and shareholders,between shareholders and shareholders.The fourth part, in this part,the author analysis the cognition of some special shareholders' qualitifition in the practice, combined the stardard of cognizing of it in this text, as well as the company law and judicial interpretation of three, analysis some special type about cognizing of shareholders' qualitifition in the practice, such as equity transfer, impersonate shareholders, and hidden shareholder. The author analyzed the first several shareholders, and then points out that the real performance several shareholders in the qualification of existing problems and put forward some suggestions to perfect cognized the several shareholders' qualifition of limited liability companys.