Research On The Penalty Right Of Shareholders' Meeting In Limited Liability Company

Limited liability company shareholders'meeting are paid less attention to the issue of punishment rights,but disputes about such issues are growing.The current company law prescribed on such issues less provisions,only the Supreme People's Court on the application<People's Republic of China Company>of a number of issues(?)(hereinafter referred to as the "Company Law Judicial Interpretation(?)")prescribed two of the provisions relate to restrictions on shareholders'rights and the delisting of shareholders,and the rights of shareholders can only be restricted or delisted if they violate their obligation to contribute.In reality,there are many cases in which shareholders breach their obligations and harm the interests of the company,and in the face of such disputes,the court can only invoke 20th and 38th of the company law of the People's Republic of China(hereinafter referred to as the Companies Act),with the help of the provisions of the Articles of association.Some articles of association provide for penalty clauses,some articles of association do not provide for,which leads to such disputes appear to be more controversial,become difficult cases.The reason why the shareholders'meeting penalty right dispute is that there are differences in the legitimacy of the Court's right to punish shareholders and the nature of the company's Articles of association.There are two theories that provide legitimacy basis for shareholders'meeting penalty right,namely normative theory and contract theory.Because of the difference between the name of contract theory and its connotation,the author thinks that it is more appropriate to change the contract theory into the Theory of Legal Act Agreement.The normative theory holds that the shareholder's right to punish comes from the Community force,and the contract theory holds that the shareholder violates the legal agreement of the company's Articles of association.Supporting different theories will lead to differences in the limitations of shareholders'punishment shareholders,and if the normative theory is supported,the qualification of shareholders will punish shareholders by determining the relationship between the overall interests of the company and the inherent rights of shareholders;If the contract theory is supported,the qualification of shareholders to punish shareholders needs to be determined according to the nature of the articles of association.With regard to the nature of the articles of association there is the company charter Autonomy,the Articles of association contract,the company Articles of association mixed,the articles of association resolution,and so on different views.Articles of association mixed theory is more reasonable,the mixed theory on the one hand can solve the predicament when company's articles of association did not provide for the penalty provisions,on the other hand,the articles of association can be subsumed into legal acts,but also to deal with the predicament brought by the diversity of the content of the articles of association.If the nature of the articles of association is recognized as the mixed theory,the penalty clause is the norm of autonomy,then the qualification of shareholders will be determined according to the principle of majority determination;The content of the Articles of association is the content of the traditional contract nature,then it needs to be determined according to the rules of contract interpretation.Although the division of the two theories will lead to differences in the limits of shareholders'right of punishment,both theories can be subsumed into the category of community autonomy,and shareholders'punishment of shareholders belongs to the category of corporate autonomy.On the other hand,the difference between the two theories is less,so the limitation of the penalty right of shareholders'meeting should be determined by combining the two theories.and the Theory of Legal Act agreement is derived from the development of normative theory,which is more appropriate for shareholders to punish shareholders and adopt the Theory of Legal Act agreement.Shareholders'meeting penalty right is a matter of corporate autonomy,should be as far as possible within the company to resolve,but at present the penalty issues are confusion,lack of reasonable punishment mechanism,due process concept is weak,did not establish a reasonable front,defense,internal relief and other procedures.The lack of corresponding mechanism has caused a series of disputes,so in order to reduce the emergence of such disputes,save judicial resources,it is necessary to establish a system of reasonable mechanism of shareholders'punishment right.