The Study On The Proper Purpose Of Shareholders' Inspection Right On Books And Records Of Limited Liability Company

Shareholders' right to know is a means right for shareholders to safeguard their own interests and the basis for the realization of other shareholders' rights.Shareholders' inspection right is the concrete manifestation of the right to know in a positive way,so it is very necessary to clarify shareholders' inspection right in the form of legal provisions.However,with the sustainable development of the modern enterprise system,the independent personality of the company is generally recognized,and the interests of the company also need to be protected,so shareholders should also be limited in exercising their rights.The right to consult the books of shareholders is an abnormal manifestation of the right to know,which should only be exercised in a few cases such as insufficient disclosure of company information.Therefore,it is generally believed that shareholders' inspection right is a relative right,and all aspects should impose a certain degree of restrictions.The requirement of "proper purpose" is the condition to be satisfied in the subjective aspect.Article 33 of the company law has made specific provisions on the right of inspection of the shareholders of a limited liability company,which indicates that a proper purpose is required for the inspection of the company's accounting books,but the connotation of the purpose's justification and the distribution of the burden of proof are not elaborated in detail.In Article 8 of judicial interpretation IV of the company law,it enumerates four situations in which the court determines that the shareholders have improper purposes,including three specific situations and a backstop clause.However,the rationality of the four cases has aroused academic controversy and has not been uniformly applied in practice judgment.Therefore,this paper attempts to explore the connotation of the justification of the purpose of shareholders' right of consult,clarify the relationship between proper / improper purposes,reconstruct the distribution of the burden of proof between shareholders and the company,so as to realize the reasonable regulation of the right of shareholders' consult to the books and to balance the interests of shareholders and the company.This paper is divided into three parts.The first part introduces the theoretical basis of shareholders' inspection right on books and records.Shareholder owner theory and agency theory show the source of shareholders' right to know.As the owner of the company,shareholders have the right to supervise the work of the management.Based on the independent personality of the company,while protecting the interests of shareholders,the rights and interests of the company should also be taken into account.The exercise of the right of consult should be carried out in a reasonable boundary according to the principle of good faith and the principle of prohibiting abuse of rights.As a special way to realize the right to know,shareholders' inspection right should follow many restrictions,among which the most controversial one in academic circles is the restriction imposed on the subjective aspect,which requires shareholders to have a proper purpose.Logically speaking,the current company law parallels the proper purpose with the improper purpose.The shareholder's purpose in the case may fall into the positive and negative situations at the same time.How to deal with this situation needs to test the wisdom of judges.The second part tries to clarify the connotation of purpose's justification from both sides.By referring to the experience of American law and making up for the lack of the connotation of purpose's justification,the author defines the proper purpose from the positive mode as specificity,relevance,necessity and security.In essence,the current judicial interpretation refuses to consult in consideration of security.Referring to the legislative mode of Japanese law,it enumerates specific situations with improper purposes,and holds that allowing shareholders to consult in this situation may damage the interests of the company.But the rationality of each case is in doubt.The author provides guidance on how to identify the substantial competition relationship and the identity of shareholders for the regulation of shareholders' right of consult in the case of competition.The second and third cases have a certain degree of application barriers,and companies often put forward some other cases as an improper purpose of defense in practice.The essence of the legislative logic is listed in the case of improper use of company information to harm the interests of the company is highly possible.Once the meaning of purpose's justification is understood,the key to the permission is the burden of proof.The third part proposes three solutions.The first is to reinterpret the relationship between proper/improper purpose and to stipulate the application of subjective requirements from the two sides.Add a general legal provision that emphasizes that the judgment of proper purpose must take into account specificity,relevance,necessity,and security.The reverse enumeration clause is intended to emphasize that the company's interests may be harmed in this case,thus giving the company the right of defense to refuse to consult.The second is to reconstruct the distribution of burden of proof between shareholders and the company,to put forward higher burden of proof requirements for shareholders,to raise the formal review to the substantive review,the shareholders need to fulfill the preliminary obligation of proof for the specificity,relevance and necessity of the purpose,and the security is presumed to be established.The company has two argumentation paths to refuse to consult.The first is to question the defects of the first three aspects of the purpose of consulting.Second,the company can prove that there is a high possibility for shareholders to consult and divulge business secrets and damage the company's interests,so as to deny the security and defend the right to consult.But this presumption of potential damage allows shareholders to present evidence to refute it.This paper discusses the possibility of the transformation of the current system of post litigation assistant consulting to agency consulting,and then considers how to build the third party consulting system in China and the influence it will have.