An Empirical Study On The Protection Of Shareholders' Right Of Access In China

Shareholders' right to know is a very important right owned by shareholders,and access is an important part of shareholders' right to know.Most of the company's shareholders are not directly involved in the company's operation and management,and information asymmetry makes the protection of shareholders' access rights very important.The provisions of China's legislation on the access rights of shareholders of limited liability companies are gradually formed.From the "Company Law" to the"Company Law Interpretation IV",the contents and exercise methods of shareholder access rights are gradually enriched and improved,and efforts are made to balance the company and shareholders.However,due to the complexity and advancement of practice,the existing regulations are not sufficient to resolve conflicts and disputes arising from practice.A review of the judgments of the whole year(2017.9.1-2018.8.30)after the implementation of the "Company Law Interpretation ?" found that the judicial interpretation four supplements and refines the shareholder access rights system,and provides some directions.However,there are still many controversial issues in practice that need to be further clarified.Having the status of a shareholder is a prerequisite for the exercise of the shareholder's right to access.The company law does not clarify the subject qualification of the right of access under special circumstances.There is a dispute between the anonymous shareholder of the equity holding relationship and the nominal shareholder,the capital contribution,the shareholder,and the shareholder who have not applied for the industrial and commercial registration formalities.Following the reasons for the shareholder's accession time,whether it is possible to check the documents of the company before joining the company lacks regulations.In practice,shareholders require a lot of access to the company's accounting documents and trading contracts,but whether the dispute should be allowed to be large.The "Company Law" is relatively simple for the shareholders to check the preposition procedure required by the company's accounting books.Whether the procedure must be performed and fulfilled is remedy in the litigation,the argument is quite fierce.The enumeration provisions of "unfair purpose" have drawbacks,and the standard of "legitimate purpose" lacks regulations.The review of "legitimate purpose" in judicial practice flows in the form,the referee enters a path misunderstanding,and the value of the "legitimate purpose”not reflected.The provisions of the "Company Law Interpretation ?" on the way in which shareholders' access rights are exercised cannot be used as a basis for shareholders to require professional assistance when they exercise their right of access without judicial procedures.At the same time,whether shareholders can choose to authorize professionals to exercise their right of access is controversial.The following provisions can be made for the above disputes.Generally,it should be clear that the nominal shareholder has the right to access the shareholders.However,when the company knows the existence of the anonymous shareholder,the relevant internal documents of the company record the identity of the actual investor,and the anonymous shareholder directly exercises shareholder rights in the company as a shareholder.And when undertaking the obligations of shareholders,it shall be deemed that the shareholder's access rights are transferred to the anonymous shareholders.The shareholder has transferred all the shares held by the shareholder and should still recognize that the shareholder's access rights can be exercised,but the company's shareholder register or charter has been changed,or has been recorded in the relevant internal documents of the company after the shareholders' shareholder status has been In the case of exercising shareholder rights and bearing shareholder obligations in the company as a shareholder,the right to access may no longer be required.At this time,the shareholder's rights shall be transferred to the shareholder's exercise.In the case of the existence of shareholder capital,due to the existence of the equity itself and the inherent nature of the right to access,the exercise of the shareholder's access rights should not be affected by the issue of capital contribution.In view of the continuity of the company's operations,the integrity of the shareholders' right to know and the equality of equity,it should be clarified that the scope of the shareholders' access to the company's relevant information is not subject to the time limit of the shareholders.Considering the characteristics of the limited liability company's humanity and satisfying the needs of shareholders to understand and supervise the company's operation and development,the scope of the shareholders' access rights should be expanded to the accounting documents and related transaction contracts that are recorded as original documents,and the application is also submitted.The manner in which the purpose is stated is appropriately limited.Improve the procedures for reviewing the preposition procedure of the books,and clarify that the preposition procedure must be properly performed before the lawsuit is filed.If the company refuses,the lawsuit can be filed.However,if the application has been filed with the company before the shareholders file the lawsuit,the purpose is not stated.In written form,but the company has no reason to refuse,the company still refuses after the shareholder's compensation in the litigation.It should be considered that the implementation of the preposition procedure has been corrected in the litigation to increase the discretionary space of interest balance.It is clear that in some cases where the application for mailing is not effectively delivered to the company due to the shareholders' own reasons,the pre-emptive effect still occurs.It is clear that there is "legitimate purpose" proposal,and there is "illegal purpose" defense.You can use a combination of positive and negative forms to make a two-way identification of "legitimate purpose" and "unfair purpose."It is clear that shareholders can entrust professional intermediaries practitioners to exercise the right of inspection on their behalf,in line with the original intention of the law to give shareholders the right to review.