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Discussion equity Inheritance

Author: DengChunLei From: www.yourpaper.net Posted: 2009-11-24 18:57:49 Read:
[Abstract] with China's socialist market economy to develop in depth, with the private sector to grow and develop, and the growing number of individual shareholders, equity inherit the legal issues will become unavoidable. When the death of natural person shareholders of a limited liability company, its equity is inherited by his heir? Equity nature? Our current "Law of Succession" and "Company Law" does not make clear provisions on these issues. From the definition of the nature of equity, combining the existing laws and regulations, and try to improve China's shareholding system envisaged.
[Key words] equity inheritance equity of a natural person shareholders & co

Corporation for its owned adhesion characteristics, equity inherited no big problem; limited liability company because of its characteristics of both co-owned together, makes equity inheritance faced the problem is much more complex.

First, the nature of the equity analysis

What is equity? The scholars have many different views. First, equity ownership. The doctrine that the ownership of the equity essentially the basis of independent property deemed to equity ownership, will deny independent personality, leading to the negation of the Corporate Property. This doctrine has been abandoned. Second, equity claims. The doctrine advocated the equity essentially claims, it emphasizes the corporate ownership of the shareholders' investment in the company's property, but did not recognize that equity is not just income claims, also includes the company's major decision-making powers, the right to choose managers rights , there is no clear understanding of the essential difference between the equity and debt. Third, equity membership rights. German and Japanese scholars based company is a corporation aggregate equity for a membership rights in our country, there are many scholars who hold this view. The doctrine that equity is the general term of the rights to property and non-property rights enjoyed by shareholders as a member of the company (corporation aggregate), and as a basis deny equity can be inherited. Fourth, equity independent civil rights. The doctrine advocated Option is a self-contained, independent right type of core shareholders in the company in accordance with the provisions of the Companies Act and the Articles of Association of the Company entitled to property rights, in essence, is a property right. Favorable views of the author of the fourth point of view.
Option is a real right, the claims alongside new property rights, the right to an independent type. It has the following characteristics: First, the property is the most basic attributes of the equity, equity shareholders based on its contribution made specific civil rights, shareholder acts because of their contribution, in kind or money as a carrier, funded its converted into registered capital . The registered capital of the company is the aggregate of shareholders' property rights, equity and can be quantified in the form of money, so the equity typical property.
Second, equity is the organic unity of the self-interests power and total benefits power. Equity including public welfare rights and self usufruct both of these capabilities. Shareholders from the usufruct is based on self-interest alone exercise the rights of shareholders equity transfer claims, the right to distribute dividends and bonuses, after the termination of the company's property right to distribute property rights. Shareholders 'total of beneficial rights is refers to shareholders based on their own interests and all the shareholders of common interests, common exercise of, to decide the rights of the company a major matter of, it include voting to attend the shareholders' meeting, the appointment and removal of company directors and company management personnel request the right to shareholders on behalf of the right of action and other non-property rights. Exercise common usufruct is for the purpose of the right to self-benefit.
Third, equity Severability transferable. Transfer their equity interest held by the shareholders may split the transfer, all for sale, can also be part of the transfer. For a limited liability company, the shareholders to transfer their ownership subject to certain restrictions, but only by the other shareholders in the transfer of objects meant restrictions., Not non-transferable.

Second, China's equity inheritance issues required

China's "Company Law" Article 76 provides that: "After the death of the natural person shareholders, its legal successor can inherit the shareholders eligible; However, the Articles of Association except as otherwise provided."
China's "enterprise with foreign investment option to change certain provisions of the second paragraph (e) provides:" corporate investors bankruptcy, dissolution, revoked, is revoked or death, his heirs, creditors or other beneficiaries legally obtained the the investors equity "; (f) provides that:" successor corporate investors merger or division, its merger or division shall inherit the original equity investors ";" enterprise with foreign investment equity change certain provisions 44, paragraph 2 provides: "The provisions of Article II (e), (f) The provisions lead to change corporate investors, if the enterprises other investors do not agree to continue to operate, may apply to the examination and approval authority for the termination of the original enterprise contracts and articles of association of the original enterprise contract after the termination of the Articles of Association, the equity people entitled to participate in the liquidation committee and assigned liquidation of remaining property; equity obtained do not agree to continue to operate, agreed to by the other investors of the enterprise in accordance with the provisions of transfer its equity to other investors of the enterprise or a third person. "
Supreme People's Court on the application of the Marriage Law of the People's Republic of China "Interpretation of Several Issues (b) of Article 16, the People's Court divorce cases involving the party on behalf of the common property of the division of the couple in the capital contributions of the limited liability company, the other party is not the company's shareholders, dealt with separately in the following circumstances: (a) both spouses consensus capital contributions of part or all transferred to the shareholder's spouse, a majority of shareholders agree, the other shareholders to give up the right of first refusal, the shareholder's spouse expressly You can become a shareholder of the company. (B) both spouses the capital transfer share transfer price matters. Consensus, a majority of shareholders do not agree to the transfer, but is willing to purchase the capital contributions to the same price, the people's court may split the transfer of investment income property. A majority of shareholders do not consent to the assignment, but also do not want the same price to purchase the capital contributions deemed to consent to the assignment of the shareholder's spouse can become shareholders of the company. A majority of shareholders agree that the evidence used to prove that the provisions of the preceding paragraph, the shareholders' meeting can also be a written statement of the material of the parties through other legal means to obtain shareholders. Improve equity inheritance system thinking

1. Shareholders eligible to inherit problem
Shareholders eligible course inheritance, the provisions of the Articles of Association for exceptionality. The heir only need to prove that it is the legal successor of the deceased shareholder can. Other shareholders only prove the articles of association Conventions new shareholders joined the exclusion or limitation of inheritance, the heir to the party can not automatically obtain the qualification as a shareholder. If the shareholders that may occur in the future shareholders eligible to inherit the company will bring uncertainty on the issue of succession in the equity of all shareholders may agree to conditions for determining shareholders eligible to inherit in the company's articles of association, or completely prohibit shareholders eligible to inherit.
Second, the introduction of a balanced system to make more reasonable law, inheritance rights and shareholder rights. Shareholder qualification occurs inheritance, the company's co, in practice, due to different degrees may be destroyed. The new shareholders may seriously undermine the mutual trust and cooperation between the existing shareholders, which led to the company impasse. In this case, the balance system should be introduced, should be given to other shareholders to exit or dissolution of the company's legal rights, which will also protect the people together to some extent.
Third, the reference to the provisions of the company equity transfer inheritance option. When there is no agreement in advance between shareholders, after an agreement is not reached, each heir in order to achieve the shareholders eligible to become shareholders of the Company to apply to the company should be made heirs to convene a shareholders' meeting or shareholders will, within a reasonable period of time by the company, by the still surviving a vote of shareholders, the shareholders of a majority of more than agree to their shares, they can become shareholders of the Company. Otherwise, they can not become shareholders of the Company do not agree for shareholders on the qualified heir heir should inherit the shares should be given priority to buy, and then by the heirs inherit the property interests, and if you do not buy that is deemed to agree to the heir to become shareholders.
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