On The Limited Liability Company Shareholders Qualification Cognizance Standards

Shareholders, the issue of qualification cognizance has been one of the companylaw academic focuses of concern in recent years, and one of the frequent appearancesand the difficulties widespread controversy in judicial practice. In the limited liabilitycompany and the joint stock company qualification cognizance of shareholder, thelimited liability company qualification cognizance of shareholder issues are morecomplex and more typical, so we will just from the perspective of limited liabilitycompany to discuss the issue of qualification accreditation (The following companieshave been claimed that are limited liability companies), combined withForeign-related legislation to discuss and analyze the specific criteria of qualificationcognizance of shareholders, both in the company law academic and judicial practice.First, I address the academic standards on the qualification cognizance ofshareholders three main points that form elements of doctrine, the substantialelements of Marxism and adopting both the form elements and the substantialelements of Marxism, discuss the content of the three standards respectively, and thenanalyze the various defects and inadequate of the three viewpoints. Then the formalelements and the substantial elements were re-defined the content by the author, andthe author from the people combination perspective to present the original ideas thatinvestors or shareholders agreements should be the core criteria on cognizing theshareholder qualification, the internal disputes and the external disputes should beadopted different specific determination standards.Secondly, it is widespread that when the company has been set up, the person’sintention to establish was false, false to set up company, and flaws of the funding, andetc., this time determined by what standard can not be generalized. For the falsedeclaration of intention, was divided into defects of intention and false of intention bythe author, for the former, the defected persons should be ascertained with theshareholder qualification, and for the latter, the false persons do not have the mean toset up a company, they should not be identified with the eligible shareholders; for theflaws of funding, is divided into part of the funding flaw and all of the funding flawby the author, on both of the cases, the defected persons should be confirmed havingthe shareholder qualification, but they must to fulfill the capital as soon as possible. Again, for the most controversial and the most difficult to cognize theshareholder qualification in the circumstances that the shareholder identity has defectsof the qualification in judicial practice, the author analyzed and discussed seriously,including the anonymous investors, bogus shareholders, nominal shareholders, anddry shareholders on the issues of qualification accreditation. When the controversyoccurred outside the company, it should be determined by the appearance of formelements as the standard to protect bona fide third; when a dispute occurred inside thecompany, it should be determined by all the shareholders agreement that as thehighest recognized standards, and for different specific circumstances should bedetermined by different standards.Finally, the shareholder qualification cognizance in the shares transfer is also adifficult problem. The shares transfer was divided into flawless shares transfer andflaws shares transfer by the author, and distinguish different circumstances todiscussed, in upholding the principle of protect bona fide third, while the investor orshareholders agreement should be as the core standards in cognizing. Meanwhile, theshareholder qualification cognizance in the succession of shareholder qualificationwas also discussed by the author.