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The shareholder withdrawal argument basis and the essential standard

Author: ChenXin From: www.yourpaper.net Posted: 2010-06-04 07:12:11 Read:
Keywords: paper limited liability company shareholder withdrawal
Abstract: limited liability company established the shareholder withdrawal system has its theoretical basis for the freedom of contract, autonomy, natural rights and reality such as extrusion, avoid deadlock to lift and protect the interests of small shareholders, through the analysis of the reason of the rationality and necessity of the establishment of this system.We must pay attention to the withdrawal system specification to prevent dissimilation operation in elucidating the basis at the same time, the limited liability company shareholder withdrawal system in strict control and legal setting mode, realize the value function of security system.
The shareholder withdrawal system refers to allow shareholders in the law of the case from the original company system, the establishment of shareholder withdrawal system for such as we cling to the "is not a small impact on the three principles of capital" of the continental law system countries.China's new company law article thirty-sixth "shareholders in the company registration, may not withdraw their capital" and "compared to the old thirty-fourth shareholders in the company registration, may not withdraw their capital contributions" has just changed a word has different value significance.When in the face of this provision change, although I did not like some scholars too optimistic that China established the shareholder withdrawal system, but identification establish the provisions and other provisions, indirect recognition of the limited liability company shareholder withdrawal system, was formally established after this system opens the door "law", laid the foundation.The author hopes to set up a system of theoretical basis and practical need to analyze and clarify, to enable people to understand the significance of the establishment of shareholder withdrawal system, in order to relevant content for the company law provides some theoretical discussion on Cultivation of good.
A theoretical analysis,
The principle of freedom of contract.According to the principle of company contract theory, we present the company set up in the shareholder agreement, is the product of all the shareholders agreement, and in accordance with the another important shareholders contract forms of articles of association to the specific operation, in the limited liability company omnipresent importance of common shareholders will.Consistency of all the shareholders in the mean time, the shareholder agreement is often based on their own interests or common purpose of predictable basis, when the company in the event of a major change, like the articles of association of the company, change of company business policy change may exceed the shareholders in the establishment of the company, contract expected, due to persistent legal relationship among shareholders damage.It is "the parties to make some kind of meaning is always with its understanding of the basic situation and the future of the basic situation of reasonable foreseeability is based, once the basic situation of Party's decision to change, or the emergence of new situation leads to the original situation can not be used as the basis. When decision, the parties have the right to make a choice."Since the law allows the parties to a contract with the creation, start the legal relationship, nature should also be given to lift this relationship survives free.Because the establishment of the company or dissolution shall depend on the shareholder, the shareholder rights and interests in the company are infringed, the company can not recover their rights or dissolution of the company formed a consensus, harms to interests of shareholders should have the right through various relief to maintain their own rights.It is legal and contractual provisions not reality, honesty and credit based on the consideration, should be allowed to "lift the relationship between the contracting parties" in shareholders can not maintain the relationship is.
Trust, the faithful obligation.The limited liability company and Limited by Share Ltd may have capital, a major difference between them is the human nature of limited liability company.A limited liability company established on certain material foundation, but also corresponds to the trust between shareholders, which requires shareholder in performing the duty of loyalty, not only exists in the shareholders of the company also exists in between the shareholders, and the duty of loyalty to both common purpose and the pursuit of shareholder's personal relationships and shareholders of the company organization company to achieve function.So the good cooperation between the shareholders of the limited liability company is the basis for the development of limited liability company, if the trust relationship between shareholders is destroyed, the basis of cooperation would not exist, like "once the large shareholders under the control of the company as to seek their own interests, it means abandoning existing on the original trust of course, the small shareholders have the right to choose exit investment relationship; when the small shareholders withdrawal right can be realized, directly on the responsibility to prevent the interests of creditors may cause damage to the consequences of large shareholder is completely fair and reasonable".Although the shareholders of a company with limited liability can not be like the stock shareholders "voting with their feet" free access to company, but in the basis of cooperation on the basis of destruction, quit the company might be the best choice among them.In addition, it is because of the trust foundation limited liability company co-author and cooperation are also likely to other shareholders agreed to transfer to external people but no one is willing to transfer the case, after all, the trust relationship is not everyone can have.
The inherent right of shareholders.Derivative right belongs to the shareholders' equity withdrawal, specific shareholder is the shareholder legal status, and an abstract generalization of specific rights and obligations of the shareholders.Based on the mentioned in the people of important traits of closed limited liability company, the shareholders supervise good relationship is the basis of cooperation, if this kind of harmonious suffer huge impact, according to the civil law principle of equality of shareholders voluntary investment freedom nature also has his rights, the equity withdrawal is an extension of the shareholders civil rights nature.Especially in the poor management by the major shareholders, small shareholders the oppression of shareholders withdrawal decision, this is the freedom of investment in the meaning of the title, if the shareholders can't enjoy these management will increase the investment risk.If you do not allow shareholders to withdraw, not only causes the internal waste of resources, but also makes small shareholders in a more passive situation, even for large shareholders' expropriation of minority shareholders in the company's property to create opportunities, resulting in shareholders equity and justice can not be realized, will also reduce social investment enthusiasm and shareholders to exercise equity withdrawal is still within the category of shareholders'.Shareholders will stake just changed shareholder, does not damage the integrity of the capital, from the company also is the realization of the right of integrity.
two, the reality of the need for
To protect the interests of small shareholders.The establishment of shareholder withdrawal system is to protect the interests of small shareholders to consider in the very great degree.Clear shareholders withdrawal right, various obstacles existing legal relationship and break through the large shareholders prevent small shareholders and making out in the corresponding case, reduce the relative damage, so small and medium-sized shareholders in opposition to no effect or consumed time, material is too high, escape character Si Ziran is their reasonable choice.Then the role of shareholders withdrawal right will play, meet the need to protect the interests of small shareholders, without too many intervening factors.
To resolve the company deadlock.Company deadlock, generally refers to the intensification of the conflict of interest between shareholders, because between the shareholders and the company, management personnel and management personnel are in the process of operation, the company operating mechanism of failure, the shareholders' meeting, board of directors and the board of supervisors and other agencies can not be normal performance of duties, the company in a state of paralysis.All from known limited liability company is the product of people together, is a shareholder asked the faithful trust relationship reflected in the company.But undeniable is, as between shareholders and destruction caused by the change of circumstances, this will make the contradiction in the treatment of many affairs into trouble."The shareholders have no ability to break this deadlock, and irreparable damage is threatening the company or companies are suffering from the injury, or because of the impasse."Shareholders can not unilaterally require withdrawal or dissolution of the company, is the company law implementation of company capital, capital maintenance, inevitable requirement of three principle of capital determination; but for that had fallen into voting deadlock and deadlock, existing controlling shareholders seriously the repression and the interests of the shareholders and the company set up problems such as serious violation to the limited liability company, if the minority shareholders sued for withdrawal, a company dissolution or termination of the cooperation agreement, the judicial organs have taken a cautious attitude.So the situation of lack of trust relationship should not be too long, after all, or to profit for Siwon, it is detrimental to both.This may be one out of the whole or their own long-term interests to opt out, thaw for this situation, the company back on the original running track.
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