| The right to information is a fundamental right enjoyed by shareholders in accordance with the law and is mainly realised through the right of access to the books of account to which shareholders are entitled by law.The right of access to the books of account is legally established to protect the interests of shareholders,but such protection must have its limits.China’s company legislation requires shareholders to exercise the right of access to the books of account under the premise of a legitimate purpose,i.e.the company may deny access to shareholders if it is determined that they have an "improper purpose".Article 33 of the Company Law does not specify the criteria for determining the "improper purpose",but only makes a general description,which leads to the problem of unified standards and difficulties in judicial decisions.Since then,until the introduction of the Company Law Interpretation(IV),Article 8 has listed three situations in which shareholders can be deemed to have an improper purpose in exercising their right of access,and set up a bottom-up clause,which to a certain extent has given useful guidance to judicial trials,but many controversies and problems still need to be further discussed and resolved.This article focuses on the determination of "improper purpose" in the shareholders’ right of access under Article 33 of the Company Law,and summarises and analyses the judicial decisions in which the determination of "improper purpose" has been the focus of controversy since the introduction of the Company Law Interpretation(IV).The discussion also takes into account the relevant legislation and practical experience of overseas countries on the determination of "improper purpose".This article consists of four chapters,the first of which explains the basic concepts relating to the right of access to shareholders’ books,clarifies the legitimacy of using "improper purpose" as a constraint on the exercise of the right,and points out the importance of its recognition rules for the reasonable and effective exercise of the right of access.The content of shareholders’ right to information includes the right of access,the right to question and the right to choose inspectors,and the right of shareholders to access the books of accounts is at the core.Based on the principles of honesty and trust,prohibition of abuse of power and the concept of balance of interests,it is justified to set restrictions on the right of access for improper purposes.The second chapter describes the legislative evolution of the improper purpose rule,introducing the origin of the shareholders’ right to know and the development of the improper purpose rule.It also provides a comparative study of the right of access regimes in Germany,the United States and Japan as typical representatives.The third chapter focuses on the current situation and dilemmas of the determination of improper purposes in the exercise of shareholders’ right to access books in China,firstly explaining that the basic legal norms for the determination of "improper purposes" in China include the second paragraph of Article 33 of the Company Law and Article 8 of the Interpretation(IV)of the Company Law.Secondly,using "shareholders’ right of access" and "improper purpose" as keywords,we searched for cases of disputes over shareholders’ right to information heard by courts at all levels from 2021 to November 2022.The 328 civil judgments were selected as the subject of the study,and the issues of the subject of litigation,the purpose of access,the company’s defence and the court’s decision were statistically and analytically analyzed to summarize the characteristics and dilemmas of judicial decisions in determining the "improper purpose".The problems that exist in China’s current legislative provisions and judicial practice are identified.The fourth chapter addresses the shortcomings of the rules on the determination of "improper purpose" in China as proposed in this article,and proposes suggestions for the construction of relevant legislation and judicial rules in China,taking into account the lessons to be learnt from overseas.On the one hand,the general guidelines for the determination of "improper purpose" will be refined from the three reference elements of malicious intent of shareholders,possible damage to the interests of the company and the lack of necessity of access.On the other hand,we will strictly control the determination of substantial competition,identify the corresponding responsibilities of shareholders in relation to the right to information litigation,and the point at which the burden of proof is shifted,amend the underwriting provisions for the determination of "improper purpose",and enhance the substantive effectiveness of the pre-litigation procedures.The "improper purpose" determination is an important means of limiting the exercise of the shareholders’ right of access,which is essentially a balance between the interests of the shareholders and the company.The shareholders’ right of access to the books should be limited to a certain range of reasonable exercise,if the restrictions are too strict,it will cause the shareholders can not give full play to their right to information,it is difficult to participate in the operation and management of the company;if the restrictions are too loose,the legitimate rights and interests of the company will most likely be damaged.It can be seen that the "improper purpose" of the identification and application is essentially to achieve a trade-off between the interests of the company and its shareholders.In particular,under the existing laws and regulations in China,the court should uphold the concept of balance of interests,accurately determine whether there is an "improper purpose" in the exercise of the shareholders’ right of access to the books of accounts,taking into account the legitimate interests of the shareholders and the company. |
