| The shareholder expulsion system has long time been a blank in our country until the introduction of “Company Law Interpretation(Three)†which initially established the system. There are many problems existing in current provisions of the system, especially for the provisions on the causes of expulsion which is too simple and hard to meet practical needs. Therefore, it is necessary to make special research on the causes of expulsion in order to improve the provisions on the causes of expulsion.The main body of this paper is consisted of four chapters and a conclusion as follows:Chapter 1 sums up three types of expulsion causes divided by different patterns of manifestation through the discovery of the inadequacy of current law in our country and by referring to the provisions of foreign law on expulsion causes. The three types of expulsion causes are respectively the legal causes stipulated by legislation, agreed causes agreed by companies on their own, and those major causes which are not or unclearly agreed or stipulated but still necessary to apply the expulsion system.Chapter 2 discusses the legal causes. Starting from the evolution of the system, the people combination is the fundamental element that is throughout the expulsion system. Expulsion causes should be causes affect the people combination. However, the personal combination is a concept of strong subjectivity, so in order to objectify its judgement standard, for the purpose of the regulation function, it can be concluded that shareholders’ behavior caused or may cause serious damages on the company could become a legal cause. From the view of contract termination theory and torts, expulsion causes can be categorized as three types of behaviors: shareholders’ failing to fulfill its obligation of capital contribution, breach of fiduciary duty, and infringement to company. Among them, only the failing to fulfill its obligation of capital contribution is suitable for enumeration legislation due to its clarity and typicality, while the breach of fiduciary duty and the infringement are suitable for generalized legislation.Chapter 3 analyzes the agreed causes. Companies have the right to agree on expulsion causes themselves. The agreed causes and legal causes should divide and conquer since the agreed causes are born to breakthrough principles established by legal causes. It could even be removed from the original purpose of the stipulations of the expulsion system, so as to only treat the agreed expulsion as a game tool that can promote the efficiency of companies. Formally, the agreed causes should be established by consensus of shareholders, which is also where the legitimacy of the agreed causes lies. The establishment of agreed causes is free but must not be arbitrary. It must ensure the truth and freedom of shareholders’ intention and shall not exceed mandatory provisions of the law and the principle of honesty and credit, which are the bottom-line requirements.Chapter 4 mainly discusses the necessity of major causes. The application of major causes can overcome the lag and rigidity of law, to better realize the value of justice. Meanwhile, in order to take into account the value of order, major causes should be applied within the framework of the legal causes, so as to better develop the effectiveness of the system as well as safeguard the reasonable expectations of shareholders and prevent the abuse of the system.In the conclusion chapter, the author summarizes the previous chapters and expresses the views on expulsion causes selection. It is necessary to carry out a comprehensive reconstruction the expulsion causes in our country and the best choice is the synergism of the three kinds of causes. Legal causes take “defective†as the enumeration item; take “abuse of the rights of shareholders caused or may cause serious damage to the company’s interests†and “other intentional conducts that damage the interests of the company†as the summarized item; give “causes agreed in consensus by shareholders of the company of the subject†autonomy expulsion causes set by the company. At the same time, in the judicial practice, we shall form the convention to apply the expulsion system in the frame work of legal principle for major causes. |
