Analysis Of The Legal Issues On Inheritance To Shareholder Qualification Of The Limited Liability Company

It has been nearly 40 years,since the reform and opening.In this short of 40 years,our country’s market economy has realized the amazing leap-type development,especially,after state-owned enterprises reform,and developing private econom.Thus,our country’s thriving private small and medium-sized private enterprises have sprung up.It has given rise to a number of a new generation of successful entrepreneurs after the reform and opening up.Most of these enterprise organization is a limited liability company.Now,prodded by the time,the first generation entrepreneurs are old,and died one after another.As a result,a series of problems of shareholders’ inheritance of limited liability company emerge.However,a t present,regulations concerning shareholders’ inheritance of limited liability company appear on the article 75 of the company law,"After the death of a natural person shareholder,his lawful inheritor may inherit the shareholder qualification;but unless it is otherwise provided for in the articles of association." It Confirms the principles that"shareholder qualifications can inherit" and "the company’s articles of association autonomy".Company law seems to give a clear answer to resolve the problem.But carefully considering the regulation itself,and combining with concrete case dispute controversy,I think this regulation needs to be perfected,not only because the choice of words is inappropriate,but also the proviso is relatively rough.So,just rely on this regulation,we still cannot solve the specific dispute of cases.In this article,I will discuss the issue of the problems of shareholders’ inheritance of limited liability company.This article is divided into six parts:In the first part,I use a case study to lead to discussing about the shareholders’ qualification inheritance of limited liability company in the company law.Combining with the court’s and other parts’ point of view,I put forward the follow-ing questions:First of all,whether "shareholder qualification" which has a strong personal attributes can become the object of inheritance for legal heir to inherit?The object of inheritance shoud be "stock equity?shareholders’ qualification or shareholders’ right"?Second,whether the regulation that "except otherwise provided by the company’s articles of association" means the company’s articles of association can absolutely restrict and eliminate the provisions of the law?If not,what degree can it restrict?Which shareholders’ rights,for example,may be limited or deprived by the articles of association,which can not?Finally,how to judge the rationality or validity of the restriction and deprivation of shareholders’ right in articles of association?In the second part,I think that current company law has wrong understanding about the object of inheritance of legal heir and the theoretical circle and judicial practice also have no unified view.Therefore,it is necessary to parse and distinguish related concepts in detail.Therefore,in this part,I’ll analyse the "stock equity","the qualification of shareholders",the concept of "shareholder rights" and their mutual relation and distinction.The main conclusion is that on the hand,essence of "stock equity" is the ownership of shares;"Shareholder qualification" means the identity of the shareholders,which has very strong personal attributes;"Shareholders’ rights"means that a boudle of rights that the company’s shareholders own,on the the other hand,the three concepts have difference between each other and connect with each other,meanwhile,they form a logical system.Commercial subject acquires stock equity through investing in company,and then obtain the status of shareholders through a certain procedure.Finallly,on the basis of the qualification of shareholders,commercial subject shall enjoy the relevant shareholder rights.In the third part,I will analyze the irrationality of definition of the object which a limited liability company’s shareholder inherit in company law through the regulations and related content about inheritance object in China’s inheritance law and extraterritorial Commercial Law,combined with analysis conclusion,in the first part,of the concept,"stock equity,shareholder qualifications,shareholder rights".In the fourth part,I will analyze "shareholder qualification inheritance" in the company law through characters of limited liability company which based on shareholders.Compared with company limited by shares and partnership firm,limited liability company has dual attributes that is characters based on shareholders and characters based on capital.On the question of shareholder inheritance consideration from the perspective of characters based on shareholders is more important.Because such characters are of great significance to a limited liability company’s survival and development.The trust relationship between the shareholders is built on trust each other each other’s ability,personality,wisdom,etc.It is not such a concept that as long as a business subject invest,he can become the shareholders of a company.It must be recognised by other shareholders,to achieve "shareholder qualification".So,the after the death of original shareholders,his rightful heir can not directly get"shareholder qualification" through inheritance.In the fifth part,I mainly elaborated about the exemplary provisions that the company law article 75 "exceptas otherwise provided by the company’s articles of association".I think the proviso transfers the originalcompany law mandatory provisions into arbitrary rules.This shift is what we are happy to see and accept,because it gives a limited liability company the business subject more autonomous space.It enables them to fully operate companies in accordance with their own business thinking,and it also conforms to the characteristic of characters based on capital.However,such huge freedom also brings perplex to the judicial practice and theoretical circle,for example,in the problem of "shareholder qualification inheritance",we may have the following questions,which shareholders’ rights can be restricted and deprived?Which can’t?To what extent it restricts is reasonable?How to judge it?The the legitimacy and rationality of thecompany’s articles of association’s restricting and eliminating articles is necessarily subject to judicial review,while in practice,there has been no corresponding standards.I think we can review by the way of categorization and interest measurement.Through the two measures,the judging results of the legitimacy and rationality of the company’s articles of association’ s restricting and eliminating articles.In the sixth part,this part is the conclusion,I will summarize for the entire article,and conduct the final summary statement for important argument.