The Research On The Element Of “Purpose Legitimacy” Of Shareholders' Inspection To Books

With the improvement of the degree of specialization of the modern market,as the main participants in the market that the company,its ownership and management of the separation has gradually become a common phenomenon,which shareholders and the company between the information asymmetry has become this The inevitable result of the phenomenon.The modern company law generally give the shareholders the right to know the way to eliminate the shareholders of the information difference,so as to protect the interests of shareholders.But the company itself as an independent legal subject,the maintenance of its own interests will naturally conflict with the interestst to know of shareholders.Therefore,in the majority of the country's corporate law legislation,in order to balance the interests of shareholders and the company,it will be aimed at the exercise of shareholders to set up a number of restrictive elements,such as the main body of shareholders,the exercise of procedural,as well as the subjective purpose of the shareholders and so on.The definition and judgment of the "legitimacy" of the shareholders' "purpose legitimacy" has been the content of the judicial practice and the academic controversy,because the subjective level of the shareholder is the subjective level and the "legitimacy" itself is a concept of value judgment.,And even the American scholars believe that "the purpose is a cause of the emergence of a large number of litigation terms" 1.The legislative provisions on the "purposeful legitimacy" of the right of access to shareholders are mainly stipulated in Article 33,paragraph 2,of the Company Law of the People's Republic of China.On the basis of the principle of "the purpose of legitimacy" of the right of inspection of shareholders' books in our country,this paper is based on the study of the elements "legitimacy" of the shareholders on the basis of the principle and the ambiguity.,The relationship between "righteous purpose" and "improper purpose","positive purpose legitimacy" to determine the criteria and type,"negative purpose of legitimacy" to determine the criteria and type of "purpose of legitimacy" A problem that is mainly considered to have the following four aspects:The first part is about the shareholder "legitimate purpose" and "improper purpose" relationship argument.In this paper,the United States and Japan in the United States and Japan to understand the understanding of the domestic scholars and the understanding that the existing research did not on the issue,a clear release of the discussion alone,but implicit in the discussion of the two.Of course,the understanding of the relationship between the relationship between both inclusive and parallel relations,but my academic point of view,mainly biased parallel to the independent discussion of the two issues.In this paper,from the perspective of the concept of legitimacy,combined with the British scholars Berlin "positive freedom" and "negative freedom" theory,that the shareholders "legitimate purpose" and "improper purpose" is not two independent parallel concept,Shareholder "purpose legitimacy" under the concept of two legitimate aspects of the judge,and were defined as "positive purpose of legitimacy" and "negative purpose of legitimacy." On the former,the author from the shareholders of the book to read the right of the theoretical basis of the source of their own argument,the shareholders "positive purpose of legitimacy" from the shareholders of the interests of investment,while the latter is from the company to protect the rights and interests of private law and other aspects of the argument,"Negative purpose legitimacy" comes from the shareholders' access behavior and there is no transition to the company's legitimate rights and interests.And the author believes that in the "purpose of legitimacy" in the order of judgment,the first "positive purpose of legitimacy",and then is the "negative purpose of legitimacy" to judge.The second part is about the "positive purpose of legitimacy" to determine the criteria and type of research.On the basis of comparative research,this part thinks that the existing research is deep and numerous,but lacks systematic and systematic understanding in cognition.On the basis of the existing viewpoints,the author thinks that the judgment factors of "positive purpose legitimacy" mainly include: the prerequisite elements: the necessity of exercising,the substantive elements: the shareholder's interest,the form factor: the purpose of the inspection Specific and access to the scope of the direct connection with the purpose of four aspects.In the study of the purpose of checking the purpose of access to the books,the author concludes that the types of books are mainly related to the interests of the shareholders and their own interests,Interests are directly related to the purpose of the two types.On the basis of the two major types,they are divided into three kinds of small types.The details are described in the second part of the study of "positive purpose legitimacy".The third part is about the "negative purpose of legitimacy" of the criteria and type of research.On the basis of combing the existing research,this paper argues that the existing view has the wrong tendency to understand the shareholders' interests and the abstract standard of judgment.Therefore,the author from the modern civil law to prove the standard theory,that "negative purpose of legitimacy" should be applied to the public prosecution law generally a high degree of proof of the standard to determine whether a high degree of improper purpose of shareholders will infringe the interests of the company.In other words,for the parties to advocate the existence of the interests of the company against the purpose of the company,only when the evidence provided by the facts to prove the facts,in accordance with the general rational social experience to determine the company to obtain specific information after the company will have a high probability of the company's business secrets The judge of the infringement of the fact that the formation of evidence.In the case of typological research,it is necessary to divide the shareholders' improper purpose in the judicial practice on the basis of comparing the internal and external legislative and empirical research views.There are competing relations or similar relationship between the shareholders and the company,and the shareholders have the direct infringement of the rights and interests of the company Purpose,shareholders have been infringed on three aspects of corporate interests.Of course,in each of the following aspects of the distinction between several small types,the specific content of the third part of the "negative purpose of legitimacy" in the study of the type of argument.The last part is about the "purpose of legitimacy" elements of the burden of proof of the study.Although it is generally believed that the distribution of burden of proof is a procedural problem,the author takes into account the difficulty in the direct proof of the subjective "purpose legitimacy" in the judicial practice,and the distribution of the burden of proof often determines the whole shareholder's right of access And it is proved that the distribution of liability is not only a matter of procedural law,but may involve the understanding and analysis of the substantive law such as the establishment of the right of access to the books.Thus,this article will be "purpose of legitimacy" elements of the burden of proof assigned to the entire article structure.On the basis of comparing domestic and foreign views,this paper argues that the existing understanding of the responsibility of distribution of "purpose legitimacy" in the Company Law of the People 's Republic of China is basically reasonable,but the reason and logic of argument is too simple.Thus,the author of the company law 33 2 in the legal interpretation of the point of view,that the shareholders bear the "positive purpose of legitimacy" to prove responsibility,and is to bear the substance of the proof of the content rather than just procedural proof;"negative purpose of legitimacy" Of the burden of proof is in line with the provisions of the inverted,the company bear the existence of shareholders may damage the company's rights and interests of the proof of responsibility,otherwise the shareholders constitute the "negative purpose of legitimacy."...