Study On The Access Rights Of Shareholders Of China’s Limited Liability Companies

With the development of social economy,the separation of ownership and management rights of modern companies has further deepened,and complex equity structures have also been adopted.As shareholders have little or no participation in company management,information between shareholders and management has not occurred.Symmetrical situation.And this kind of information asymmetry easily leads to the moral hazard of management and thus harms the interests of shareholders.The company law provides an effective way for shareholders to obtain the information they need by setting up access rights for shareholders.However,at present,the provisions of the Company Law of China on the access rights of shareholders are still too simple.The company law of China based on the traditional unitary legislation has been revised many times,and the judicial interpretation has been added many times,but it is still difficult to adapt to the development of modern companies.need.Due to the lack of specific provisions of the corresponding laws and judicial interpretations,the judicial trial relies heavily on the discretion of judges.The judges have different levels of understanding of the law,which is reflected in the case of different judgments in the case,the lack of law and The need for reality creates a huge contradiction.Based on the theory of the subject,purpose and scope of the shareholders’ access rights of the limited liability company,and the relevant legislative experience,and the problems existing in the judicial practice,this paper further explores The measures to improve the system,such as the parent company’s access rights inspection system and the inspection system,provide a sound institutional guarantee for the socialist market economy.The main body of this paper is divided into four chapters.With the background of the judicial interpretation of the company law as the background,the author draws on the legislative experience outside the domain to try to demonstrate the analysis of the lack of protection of the shareholder’s access rights of the limited liability company in China’s company law,and based on China’s national conditions and reality.A strong appeal for the protection of minority shareholders’ rights and interests,and put forward feasible suggestions to improve the system of shareholders’ access rights in China.The first chapter discusses the legislative status of the company law in China’s "Company Law",the "Company Law" Articles 33,97,"Company Law Judicial Interpretation 4" in the brief Regulations and instructions.With the modernization of corporate governance structure in China,the ownership and management rights of the company also show a high degree of separation.The requirements for investors to protect their own interests are becoming more and more urgent.However,because the law is too simple and crude,the judge has assumed too much discretion in the trial,and the judge’s different interpretation methods for the law may result in different judgments in the same case.Improve existing laws,but still can not meet the requirements to fully protect the access rights of shareholders.The second chapter discusses the relevant provisions of the subject of the access rights of shareholders of limited liability companies in China.Although the Judicial Interpretation IV stipulates that only the shareholders of the company have the right to inspect,and the original shareholders have partial access rights under certain conditions,the following problems remain unclear.First,whether the shareholder of the capital has the right to access: There is a view that if the shareholder has the right to access the same conditions as the shareholder who fully fulfills the capital contribution obligation,it violates the principle of good faith,which is also a practice in which the company hinders the shareholder from exercising the inspection.An excuse for power.However,the statutory condition for shareholders to exercise their right to know is whether they have the status of shareholders and have nothing to do with honesty.On the one hand,if the shareholders do not pay the capital in full,and the company’s assets are insufficient to pay off the debts,then the shareholders need to bear the capital contribution obligation within the scope of the payment in accordance with the law to pay off the company’s debts.In particular,under the existing capital subscription system,regardless of whether the shareholders’ contributions are in place or not,they must bear corresponding responsibilities.On the other hand,the right of access is an important means for shareholders to learn about the company’s financial information,and it is an important basis for making investment planning decisions.Therefore,even if the shareholder has a capital contribution,all rights acquired based on the shareholder’s identity should not be protected until it is lost.Second,the right to access the anonymous shareholders,the limited liability company has a strong humanity,according to the existing law,before its unnamed,the shareholders’ rights are obtained by the shareholders registered in the register of shareholders,the law does not The rights of the anonymous shareholders are also included in the shareholder’s right of inspection.Only the anonymous shareholders move from behind the scenes to the front of the stage,and their shareholder access rights are of course obtained.Third,the original shareholder’s right to access,Article 7(2)of the Judicial Interpretation 4 of the Company Law stipulates that the original shareholders are required to provide prima facie evidence that their rights and interests are damaged during the shareholding period,and can only request to consult or copy their shares.Company-specific documentation during the period.This conditionally recognizes the rights of the original shareholders to access the company’s accounting books within the scope permitted by law.This regulation has great significance for protecting the access rights of small and medium-sized shareholders,but it does not consider the situation of restricting the access rights of the original shareholders in addition to legitimate purposes to balance the interests of the company.As the equity change is more frequent,if the original shareholders are not consulted The limitation of the time validity of the right will obviously cause the occurrence of the abuse of the lawsuit,which increases the judicial cost and increases the operation and management cost of the company.Fourth,the new accession rights of the new shareholders have no objection to the new shareholder’s access to the company’s information after the accession.The main focus of the debate is on whether the new shareholder can exercise the right to access the books before the entry,taking into account the company’s operations.It is an ongoing process.In order to obtain complete information,it must involve the inter-temporal exercise of access rights.Therefore,it is appropriate to expand the access rights of new shareholders.Fifth,the access rights of the shareholders of the parent company,due to the emergence of more and more group companies,the shareholding structure of the parent company is also more widely used,but the existing company law protects the shareholder’s access rights of the parent company because of the independence of the subsidiary.There is nothing to do with the personality disorder of the legal person.This state puts the protection of the access rights of the shareholders of the parent company in a vacuum,which is not conducive to encouraging the shareholders of the parent company to expand their investment willingness.Drawing on the experience of extraterritorial legislation,the parent company’s access rights to the subsidiary is a good solution.The third chapter discusses the legitimate purpose of the shareholder’s right of access.The important part of the judicial interpretation of the company law implemented this time is to solve the long-term troubled practice of what is meant by “unfair purpose”and to promote the exercise of the right of access by shareholders.Promoting the efficiency of judicial trials has a great effect.However,the new regulations still do not have a positive answer to the question of what is a "legitimate purpose".At present,the legislation has not yet allocated the corresponding burden of proof to the parties according to the different objects of the shareholders’ access rights.This has led to the justification of the rights of the shareholders to review.The burden of proof lies entirely in the company’s situation.Although it is beneficial to protect the shareholders’ access rights,it increases the company’s burden of proof and is not conducive to coordinating the balance between the shareholders’ access rights and the company’s interests.In view of improving the clarity of the application of the law and the fairness of the judiciary,the scope of the "legitimate purpose" should be enumerated through legislation and the burden of proof should be reasonably distributed according to the different objects of the inspection.In order to achieve the purpose of balancing shareholder access and company interests.The fourth chapter discusses the scope of the shareholder’s book access rights.Since the current shareholder’s access to litigation is mainly focused on the request for the company’s books,the company law explained four,but did not break through the regulations as expected by the theoretical and practical circles,but only proposed The concept of a "company-specific document",which uses a new concept to solve another concept,obviously does not solve the practical problem.At present,the dispute over the right to inquire about the company’s books is whether the company’s accounting books contain accounting documents(original documents and accounting vouchers),company operating contracts,legal documents and other information carriers that record the company’s business activities.One viewpoint advocates strict interpretation in accordance with the meaning of the text.The scope of the query right can only include accounting documents in the limited accounting books,while the other viewpoint advocates the expansion of interpretation and support in accordance with the provisions of the Accounting Law on accounting books.The scope of accounting books is expanded to accounting documents.Considering the purpose of legislation to protect the legitimate interests of shareholders and the purpose of obtaining real query results,the scope of account book enrollment should be extended to accounting documents.On the other hand,expanding the scope of accounting book review will inevitably increase the probability of the company’s trade secrets leaking.In order to balance the interests of both parties,we can consider the extraterritorial independent inspector system.The independent inspector system is actually a system for indirect exercise of the right to inquire.It is a supplement to the shareholder’s right to inquire.The independent third party exercises the scope of the shareholder’s inquiry and gives an independent inquiry report.The inspector system can avoid the situation that shareholders and companies cannot reach a consensus due to conflicts of interest,and well balance the protection of shareholders’ enquiry rights and avoid leakage of company trade secrets.At the same time,it also plays an active role in protecting the minority shareholders because they are limited in their shareholding time and cannot directly exercise their right to inquire.The accounting book access rights also involve the copying requirements for the books.Based on the professionalism and complexity of the accounting language,it is impossible to keep in mind the information required by the shareholders only once.Therefore,the necessary copying authority is required in the accounting book review process,which may be due to the protection of the company’s trade secrets.Explain 4 does not have provisions that allow accounting books to be copied.This is a small regret.The possible negative impact on replication can be solved by the inspector system.Therefore,in the subsequent legislative practice,the license for copying should be considered.At the same time,with the development of technology,new accounting support documents emerge in various forms.Copying out can not only stay at the level of copying,and photographing,recording,recording,scanning,copying,etc.should be allowed.