The Research Of Derivative Acquisition Of Shareholder’s Qualification

The corporation law is an important part of the commercial law system, adhering to the important properties of commercial law- practicality, and it means that the company law must be able to solve problems in practice. That is to say the practicality is a carrier to convey entire life and value of company law. Shareholder, as the originator or successor of company’s practice, plays a very important role in the operation of the company. Thus, the equity has become one of the core issues of corporate disputes. In a country, the protection level of the equity is the touchstone to test whether the rule of company law is mature and fair or not. The primary task is to confirm the ownership of equity. Popular speaking, it is to ensure who confirm the company’s equity and who has a qualification as a shareholder of the company.The cognizance of shareholder’s qualification will have lasting implications for the shareholders themselves and the Interests of the creditors. The existing legislation does not specify the acquisition of shareholder’s qualification in the transfer of stock right. It also has taken different practices around the country. In the practice, the modes to confirm the qualification of shareholders for the right holders are various, including notifying company about assignment, changing the register of shareholders, asking the company to change the register, the industrial and commercial registration, etc... Also, the certificate of investment and other certificates of capital contribution, the company’s articles of association, industrial and commercial registration have effect on cognizing of the qualification of shareholders in different ways. In our country, the corporation law and its judicial interpretation, also the Distinct Court’s regulations involved the relationship between the changes in equity and shareholder qualification. But these standards have existed conflicts in practical transaction and disputes in theory that need to be solved urgently.Compared to derivative acquisition of shareholder’s qualification, primitive acquisition of shareholder’s qualification is already comparatively detailed in legislation. In the primitive acquisition of shareholder’s qualification, there are two key problems about the recognition of a shareholder’s qualification in the cases of dormant capital subscription and defective capital contribution. As “Provisions of the Supreme People’s Court on the application of the company law of the People’s Republic of China(3)" publishing, this problem has been relatively clear. While there are many problems about acquisition of shareholder’s qualification worth studying, especially the transfer of ownership of shareholder qualification will have a significant impact on the relationship of rights and obligations between the two parties. In judicial practice, there are also many cases of disputes concerning the qualification of shareholders in the case of equity transfer.In view of this, this article intends to narrow the scope of the qualification of shareholders, from the angle of following by qualified shareholders, targeted for the transfer of shares and the transfer of equity inherit the qualification cognizance of the shareholders in the case analysis, and put forward the perfect suggestions, and render my own contributions to making our country from company in law to company law in practice.This article except introduction and conclusion, the text is divided into four parts, a total of more than thirty thousand words.This article except introduction and conclusion, the text is divided into four parts, a total of more than thirty thousand words.The first part: the overview of the shareholders entitled to basic problem. This part mainly expounds the basic connotation of shareholder qualification and compared with other related concepts, and will be made by the shareholders qualification typed analysis, respectively explore the transfer of shares and the transfer of equity succession relay by the logical extension of the qualification of shareholders.The second part: the case analysis related to obtaining qualification of shareholders. The qualification of litigation on the part of having been made by the shareholders in three more representative case, through the trial court, court trial basis and legal rationality, finding problems in the process of following by qualified shareholders.The third part: the problem led by the case of the obtaining qualification of shareholders. This part carries on the second part, combined with real case selection. This paper concludes the common problems of the obtaining qualification of shareholders in practice, and analyzes the background of the problems.The fourth part: perfect the obtaining qualification of shareholders in the practice. Combined with the problem put forward in the third part, this part gives a more targeted response, respectively from the improvement of the system of shareholder’s qualification in the equity transfer and equity inheritance improvement of the system of shareholder qualification in two aspects, and from eight points to try to give comprehensive analysis as much as possible to solve the difficulties in current the obtaining qualification of shareholders in our country, to further the scientific nature and rationality, to avoid unnecessary disputes, which make the system can meet the need of social and judicial practice in China, to better protect the legitimate rights and interests of all parties.