| Limited liability company has a certain degree of human cooperation,the foundation of its existence and operation lies in the trust relationship between shareholders,if in the course of the management of the company,the behavior of some shareholders has led to the dissatisfaction of other shareholders and even the other shareholders unwillingness to co-exist in the company,so rather than dissolving the company because of individual shareholders,it is better to allow other shareholders to remove the certain shareholder from the company to maintain the survival of the company.The shareholder expulsion system is an important means to solve the internal contradiction of the company as stipulated in the national company legislation.Allowing companies to remove the shareholder under certain circumstances is a mean to protect the corporate community.While maintaining the effective survival of the company,the legitimate rights and interests of the other shareholders should be protected,and the cost of relief to shareholders whose interests have been infringed should be reduced as much as possible to reduce the impact on the outside world.The academic and practical expert have a positive attitude towards this system.The main text of the Company Law of our country does not write expulsion,only Article 18 of the Judicial interpretation of the Company Law makes some provisions,but the scope of the provisions is too simple,and only two statutory reasons for expulsion are stipulated.Only in the case of complete failure to fulfil the capital contribution and withdrawal of the entire capital contribution can the shareholders be removed from the list.The provisions are very weak,and these provisions are no longer sufficient to meet the requirements in practice.The need of the same case,the phenomenon of different judgments also exists.This system should be perfected and a complete system of expulsion should be designed.In addition to the introduction and conclusion,this article is divided into the following parts:The first part explains the shareholder expulsion system and the shareholder loss system,and the theoretical basis of the shareholder expulsion system.In Germany,the loss of shareholders and the expulsion of shareholders are two different systems,but in essence,the ultimate goal of the two is the same,and our country can construct a large expulsion system.There are many theoretical theories about the expulsion system.The theory of group self-discipline,group decomposable theory and business maintenance principle,and the theory of shareholder loyalty obligations all try to be the theoretical basis of the expulsion system.The second part puts forward the problems of the entity and procedure of the shareholder’s expulsion system in judicial practice.On the physical side,if the matter of expulsion can be broadened under the premise of safeguarding the interests of small and medium shareholders ? If the charter can regulate the matter of expulsion.What can be stipulated? Does the matter stipulated in the charter require judicial review? Procedural aspects: There is no stipulation on the time limit for the reminder.Different subjects have different opinions on this,and there are differences.It is easy to dispute whether there are any provisions on the number of votes and procedures for the amendments to the regulations and the resolution of the shareholders’ expulsion.There is no provision for the relief procedures of the proposed expulsion shareholders.If the major shareholder oppresses the minority shareholders and uses the amendments to the bylaws to increase the expulsion clause to remove the minority shareholders,what measures does the minority shareholders have to provide relief? The law does not make any provisions for the supporting operation procedures for the shareholder’s expulsion,and it is left to judicial practitioners to try to figure out;these problems have yet to be resolved.There are nearly 200 judgments in the network.The expulsion involved includes not fully fulfilling the capital contribution obligation or withdrawing all capital contributions,including the loss of employee status and the shareholder violating the non-competition obligation.Malicious collusion between shareholders and third parties harms the company’s interests etc.,provisions have caused disputes in the judicial practice.The causes of expulsion are too narrow.Although they should protect the rights of minority shareholders as much as possible and prevent the abuse of shareholder expulsion system by major shareholders,the system should not be ineffective.The third part is mainly to design the system of expulsion system of our country.First of all,in the aspect of entity,the reasons of expulsion can be developed by using for reference the extraterritorial system.The extraterritorial reasons mainly include the reasons of shareholders themselves and the behavior of shareholders.The serious fault of the shareholder’s behavior should be included in the reason of the shareholder’s expulsion,but for the reasons of his own existence,it is generally not suitable to be set up as the reason for the expulsion,if the shareholder is old and frail,Other professionals may be entrusted to make management decisions on the company,and it is not appropriate to remove shareholders in such cases.The articles of association may also provide for the reasons for expulsion.Both the initial charter and the amendment to the charter have the right to regulate the reasons for expulsion,But need to meet major cause standards.The fourth part mainly introduces the procedural matters of shareholder expulsion.Because the expulsion relationship is very important,the resolutions of the shareholders who pass the increase or decrease of the reason of expulsion or the resolution of the shareholders’ meeting through the expulsion decision need to go through a double majority vote.The bottom line is to set a lower limit of one month to prevent the deadline in the charter from being too short.For the expulsion shareholders to set different remedies for different situations,mainly including the shareholders do not have the reasons for the removal,the improper implementation of the expulsion resolution and the company’s failure to perform the acquisition of equity obligations.This kind of relief measure is also a safeguard measure for small and medium-sized shareholders.After the company’s operation and management is put on the right track,the major shareholder uses the expulsion method to eliminate the minority shareholder out of the company.Our country’s expulsion system is the combination of Germany’s expulsion and loss of power system,and this article aims to construct a comprehensive expulsion system,which will bring the extraterritorial shareholder expulsion and shareholder loss system into the framework system of the great expulsion system.Draw lessons from the reason of the extraneous expulsion and standardize the procedure of expulsion. |
