| The acquisition of shareholder qualifications is based on the subscribed share capital of the company in our country.Shareholders who have not paid their capital contributions or have not paid their capital contributions in full still enjoy full shareholder qualifications,resulting in a situation where the rights of shareholders and the obligations of shareholders are not equal,and it is difficult to maintain the company’s capital enrichment and protect the interests of the company’s creditors.The company’s right to claim capital contribution to shareholders cannot effectively regulate the defective capital contribution,and can only passively wait for the defective capital contribution shareholder to perform the capital contribution.The institutional advantage of the deprivation of shareholders is that the company does not have to passively wait for the performance of the shareholders in the debtor’s position,and can grasp the initiative to recover the equity and separately absorb and enrich the company’s capital.The deprivation of shareholders is to regulate the defective capital contribution behavior of the shareholder,the shareholder fails to perform the capital contribution obligation in accordance with the provisions of the law and the articles of association after subscribing the shares of the company,or withdraws the capital contribution after completing the capital contribution,which harms the capital interests of the company,and the performance period expires after the grace period for collection and has not been performed,the company may accordingly issue a notice of loss of rights to the shareholder to disqualify the shareholder,and the shareholder with the loss of rights shall bear the corresponding legal consequences to the company.China has not formally established system of the deprivation of shareholders,domestic academic circles lack of systematic research on the deprivation of shareholders,most scholars will be shareholders delisting system and shareholder loss of rights system confusion,resulting in judicial practice of this application is also very confusing.The system of the deprivation of shareholders and shareholder delisting originated in Germany,and the two shareholders’ loss of rights and shareholders’ delisting are actually obviously different in terms of legislative purpose,system function,application conditions,applicable procedures,and legal consequences.To clarify the basic connotation of shareholder loss of rights,we can take German law as a breakthrough point.Article 17 of the Judicial Interpretation(Ⅲ)of the Company Law of China has a part involving the loss of rights of shareholders in the content setting,but it is not a typical system of shareholder loss of rights.The setting of Article 17 is based on maintaining the company’s capital enrichment,the application conditions are harsh,and in practice,it is easily circumvented by the defective shareholders and lacks operability.Article 46 of the latest Company Law(Revised Draft)is the first expression of "loss of rights",which is a major improvement on Article 17 of the Judicial Interpretation(Ⅲ)of the Company Law,and to a certain extent,circumvents the shortcomings of Article 17.Article 46 essentially clarifies the logical relationship between shareholder qualifications and equity,but there are still deficiencies in the distribution of corporate power and the assumption of legal liability of shareholders who have lost their shares,and further research is needed.The problem of defective funding is very prominent in China’s judicial practice,and due to the lack of legislative guidance,the situation in judicial adjudication is very chaotic,and the outstanding problems in the regulation of defective funding in judicial practice are analyzed to clarify the legislative direction.The key to building a shareholder loss of rights system is to clarify the scope of application of the shareholder loss system,the concretization of the reminder procedure and the overall grasp of the legal consequences.This article is divided into five parts to discuss the construction on deprivation of shares of limited liability company in Our country The first part introduces the background and significance of the selected topic,the current situation at home and abroad of the shareholder outright theory,the research methods used in this paper,the innovation points and shortcomings.The second part introduces the basic connotation and legal basis of the deprivation of shareholders,analyzes the current situation of confusion about the concept of the deprivation of shareholders in China,system of the deprivation of shareholders is not a local system,that originates from Germany,so this is the starting point to clarify the basic connotation of shareholder loss of rights,clarify the difference between the deprivation of shareholders and shareholder removal,and accurately define the basic connotation of the deprivation of shareholders.On this basis,the legal theoretical basis for constructing system of the deprivation of shareholders is further analyzed,which paves the way for further analysis.The third part analyzes the key issues that have emerged in the domestic regulatory flaws in judicial practice and analyzes the deficiencies in legislation.At present,because China has not established system of the deprivation shareholders,resulting in the confusion of the current situation of quoting shareholders in judicial practice,some series of problems have arisen,and analyzing the judicial status of shareholders’ loss of power helps to determine the direction for legislation.The current situation of domestic legislation on defective funding is analyzed,and the shortcomings of the existing legislative path are analyzed.The fourth part makes a comprehensive analysis of the legislation of typical countries that have established the deprivation shareholders outside the region,and provides reference points for China to build system of the deprivation shareholders.The fifth part is based on the above discussion to put forward the specific construction content for the construction of China’s deprivation shareholders,the key to the construction of the system lies in the explicit supervision procedures and the focus on the legal consequences. |
