Research On The Right To Know Of Employee Stock Ownership Dormant Shareholders In Limited Liability Company

At present,with the rapid economic development and the introduction of the management concept of foreign companies in developed countries,more and more limited liability companies begin to pay more and more attention to letting all or part of the outstanding managers and backbone employees actually contribute to the public in order to retain,motivate and restrain talents.Among the registered capital,the company becomes the "shareholder" of the company,and let the above-mentioned shareholders participate in the management of the company with the sense of ownership,enjoy equity dividends,bear the company’s operational risks,in order to ultimately enhance the company’s competitiveness in the market.But the controlling shareholders of such limited liability companies often hang themselves out for the reasons of circumventing the legal provisions(including the upper limit on the number of shareholders in a limited liability company),controlling the decision-making power of the company to the greatest extent(safeguarding the interests of the controlling shareholders),reducing the cumbersome procedures for changing the industrial and commercial registration,and reducing the disputes over shareholding litigation,etc.Brain,through layers of structural design,so that the above-mentioned shareholding employees in the form of anonymous investors,which led to the "employee shareholding" anonymous investors.Controlling shareholders may restrict the rights of shareholding employees in shareholding contracts,articles ofassociation and resolutions of shareholders’ meeting.As a result,the "employee shareholding" dormant investors,according to the actual capital should enjoy the rights of shareholders are exploited layer upon layer,this kind of exploitation,nine out of ten violations of the basic principle of the unity of rights and obligations,in which the right to know of dormant investors is greatly restricted,once the controlling shareholders deliberately conceal their interests.The interests of anonymous employee shareholders can not be guaranteed timely and effectively when they want to operate or abnormal operating conditions,or even prepare to withdraw their capital.Once this kind of risk breaks out,or even breaks out frequently and can not be effectively curbed,the scope of the impact is relatively wide,it will greatly frustrate the investment enthusiasm of the "employee shareholding" dormant investors,and then affect the effect of talent incentive,and even make the employee stock ownership plan this kind of talent incentive to meet the requirements of the times die,or even There will be a certain degree of drag on the overall economic development.Whether from the perspective of stimulating the potential of human resources and developing the economy,or from the perspective of protecting investors such as "employee stock ownership",the new thing of employee stock ownership plan and the investment interests of "employee stock ownership" dormant investors should be more clearly guaranteed by China’s legislation and judicial.From the perspective of a practical case,this paper leads to a mode of operation that is widely used in employee stock ownership planning in limited liability companies: employee stock ownership platform,focusing on the "employee stock ownership" dormant investors’ right to know,trying to further explore this mode of analysis.This article is divided into five parts: Introduction,Chapter 1: Theoretical basis of the right to know of the anonymous investor of employee stock ownership,Chapter2: Exercise of the right to know of the anonymous investor of employee stock ownership,Chapter 3: Judicial relief of the right to know of employee stock ownership,and conclusion.In the introduction part,the research background,significance,literature review,main research methods,main innovation anddeficiencies are expounded;in the first chapter,the theoretical basis of the right to know of the dormant investor of the "employee shareholding" type is analyzed.Based on the principle of contract law,the right to know is stipulated under the conditions of the agent contract.Based on the relativity and validity of the contract,the dormant employee shareholder has the right to realize the right to know by requiring the trustee to fulfill his contractual obligations.Based on the principle of company law,under the premise that the dormant employee shareholder has actually fulfilled the investment obligation,and on the basis that the investment behavior of the dormant employee shareholder is under the overall layout of the limited liability company,the shareholders of the company are aware of this,so even if the dormant employee shareholder is not Shareholders in the filing level of the Industrial and Commercial Bureau should also have the majority of the shareholder level of the right to know.At the same time,based on the "employee shareholding" anonymous contributors to the capital is based on the purpose of incentives for the company,generally speaking,the proportion of capital contribution occupied by the company’s registered capital is not too large,similar to the small shareholder positioning in the company law.Therefore,giving more right to know is conducive to supervising the controlling shareholders and ensuring the healthy development of the company.Based on the principle of labor law,"employee shareholding" dormant investors or employees of the company,as more capable employees,as representatives of employees to supervise the operation of the company,enjoying the necessary right to know is the proper meaning,more conducive to the protection of the interests of employees.In the second chapter,from three aspects of the way,scope and limitation of the exercise of the right to know,it further expounds in detail from the trustee of the agreement on behalf of shareholders,from the shareholders registered for industrial and commercial registration,from the controlling shareholders of the limited liability company and from the direct acquisition of the limited liability company.The scope of the exercise of the right to know includes the right to consult financial and accounting reports,the right to consult books,the right to consult company resolutions,the right to inquire.The right to know is mainly manifested in the right of inspection.Of course,the exercise of theright to know is not without the right boundaries,the exercise of the right to know must be based on the legitimacy of the purpose of inspection,may lose the legitimate interests of the company inspection behavior,should be refused.The problem is: how to balance the rights and interests of controlling shareholders and "employee shareholders" dormant investors through this limit of authority,maximize the realization of the right to know,and ensure that no harm,not let go of malicious purposes,is a difficult point.In the third chapter,the judicial remedy of the dormant investor’s right to know is particularly important when the exercise of the right to know is impeded improperly.It is suggested that the following four litigation channels should be adopted: employee shareholding type dormant investor sues the agent for breach of contract,the notable shareholder suit,the controlling shareholder’s right to know and the company’s right to know.The first two kinds of lawsuits are better understood,the legal basis of the lawsuit for breach of contract is based on the agreement signed by the two parties;the legal basis of the well-known lawsuit is based on the qualification requirements of the shareholders recognized by law,and once the shareholders become shareholders,they will inevitably enjoy the shareholders’ right to know protected by law;the emphasis is the fourth lawsuit.The author will explore the possibility of bringing up this lawsuit.In the author’s opinion,if the fourth kind of litigation needs to be brought without obstacles,the fundamental solution needs to be set at the legislative level.The legislature of our country should promulgate special laws and regulations to confirm the complete legitimacy of the subject of prosecution.The author suggests that employee shareholding associations should be clearly established in the legal level.As a legal fictitious person,employee shareholding associations can become shareholders who have been registered by the Industrial and Commercial Bureau in the sense of company law.The employee shareholding associations should have the right to know the facts.To be clear and protected,to set up a regular information disclosure system,to establish a relief system under special circumstances,to imitate the shareholder’s representative litigation system,to set up an actual shareholder’s representative litigation system of ESOP.When ESOP fails to exercise the right to know,it mayresult in the interests of the actual shareholder under ESOP.In case of serious infringement,the investor should be granted the right to initiate a lawsuit directly to the limited liability company under certain conditions set by law.Only in this way can we solve the problem of inconsistent and ineffective protection of the "employee shareholding" dormant investors’ right to know under the current agency system,trust system and partnership system.Finally,the conclusion is that "employee shareholding" dormant investors have their own particularity among all dormant investors.In view of their employee status,the fact of capital contribution and the fact that the shareholders of a limited liability company are aware of their capital contribution or acquiesce in their capital contribution,they should be given the right to know similar shareholders,and legislation should be made.Organs should regulate it through laws and regulations in time,clarify its rights and obligations by setting up employee shareholding associations,and then help to break through the two veins of supervisors who can not be effectively guaranteed by legislation and judicature for this type of dormant investors,so as to achieve orderly incentives for talents to participate in company management in the position of masters.To create more value for companies and individuals,and thus promote the realization of the overall purpose of promoting economic development.