The Theory Of Prohibit Abuse Of Rights Principle And Its Apply In The Company Law

Under modern corporation system, the shareholders abuse of right to harm the company as a whole and other phenomenon is more serious, and seriously affected the shareholder’s investment enthusiasm, obstruct the healthy development of the company, it is bad for the development of China’s economy apparently no benefit. Therefore, the author tries to prohibit abuse of rights principle in the law applicable perspective to look for a solution to the problem of the shareholders’ abuse of rights hope to find the effective ways to regulate this kind of behavior. This paper is divided into the following three parts on this.The first part, first introduce the origin of prohibit abuse of rights principle and the principle in the current situation of the development of all countries. Ban on the origin of the principle of power abuse there have arguments, arguments mainly origin in Roman law or French law, the author reviewed the lots of books and foreign translation, that prohibit abuse of rights principle originated from Roman law. This is because the right status in Roman law is extremely high, arguably reached its peak, but through a lot of proverbs and the explanation of Justinian we can see that still exists in the Roman law the rights of exercise is not without boundary, thus the author thinks that as early as the period of Roman law has the right to an abuse of thought emerged. Since then prohibit abuse of rights principle has been widely development in many countries.Worth mentioning is China’s "company law" stipulated in article 20.The author thinks that it is improper use of the principle of the most perfect embodiment of law in our country, have to say it’s a great innovation in commercial legislation in our country.The second part is the basic theory of prohibit abuse of rights. First discusses the concept of rights abuse, and there are academic debate, the main theories are "origins", "line", "the purpose and boundaries of hybrid said", the author compare with the third theory, namely purpose is mixed with boundaries, the theories to explain the essential characteristics of the abuse of rights is more clear. According to the explanation of the theory of rights abuse has three characteristics, a form of characteristics, namely the characterization of rights with the exercise of rights abuse; Secondly, the essence characteristics, namely the rights abuse is violating rights origins or beyond the behavior of the rights as; namely rights abuse of illegal behavior. And then discusses the standard of rights abuse, academic controversy, the consequences of the abuse of power, the properties of prohibit abuse of rights principle, the function of prohibit abuse of rights principle.The third part is prohibit abuse of rights principle the concrete application of company law in our country. First discuss the prohibit abuse of rights principle in the process of the establishment of the company law in our country. Then the author summarizes the prohibit abuse of rights principle applicable types in the company law, 1.prohibit abuse of company system. 2. Prohibit abuse of the capital majority. 3. Prohibit abuse of right of minority shareholders. 4. Prohibit abuse of litigation. Finally the author to prohibit abuse of the principle of capital majority, prohibit abuse of the right to know and a ban on shareholder representative action of the misuse of the application of the three specific detailed research.The thesis draws the conclusion in the end.