| Shareholder expulsion means that due to a shareholder’s reasons,when his conduct or other factors lead to serious losses of a company,other shareholders and company’s creditors,the company can follow strict procedures to cancel the shareholder’s qualification unilaterally in accordance with statutory procedures or the articles of the company.Compared with dissolving companies by force through judicial system or shareholders voluntarily transferring shares,shareholder expulsion system plays a key role in resolving internal conflicts in the process of corporate governance and maintaining stable governance structure of companies.In view of many drawbacks of frequent disbanding of companies,drawing on the outstanding achievements of foreign legislation,the 17 th article in the “Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(III)” establishes shareholder expulsion rule of limited liability company(hereinafter referred to as “LLC”)the first time,which makes it and dissolving companies and transferring shares the legal ways of resolving companies’ deadlock.In the context of corporate capital out of sanctification,when shareholders have significant reasons that bring serious obstacles to the company’s daily management and even threaten the company’s survival,the company may initiate shareholder expulsion rule in accordance with law,to safeguard the company’s personalities and protect the legitimate investment interests of other shareholders.It is true that the introduction of judicial interpretation(III)provides a legal basis for the further study of shareholder expulsion.However,detailed examination of expulsion dispute in judicial practice shows that the provisions of the interpretation need to be further adjusted and improved.The reasons for shareholder expulsion are too single and LLCs don’t have autonomous to regulate other reasons.The content of the program of shareholder expulsion is too vague,leading to disputes on the understanding of the base of shareholder expulsion and operational mechanism in judicial practice.Therefore,this paper chooses the relevant judicial cases,points out the obstacles existing in the actual operation of shareholder expulsion,and further studies and regulates a series of issues such as the causes of shareholder expulsion,the voting mechanism and the consequences of shareholder expulsion.This article consists of three parts: introduction,text and conclusion.The introduction summarizes shareholder expulsion rule of LLC and specifically explains the background of this topic,the value and meaning of the study of shareholder expulsion rule,the domestic and foreign legislation of shareholder expulsion and the research status,the study methods and structure of this article,and finally points out the innovations and shortcomings of the paper.The text is divided into four chapters:The first chapter elaborates the theoretical basis of shareholder expulsion.First of all,it analyzes the traditional equity theories and discusses the theoretical basis of shareholder expulsion rule in the view of shareholders by the point of two new views.Secondly,this paper discusses the theoretical basis of shareholder expulsion rule from the perspective of the company by the theory of corporate entity autonomy,the group’s collapsible theory and the theory of legal economics.The second chapter analyzes the substantive constituent elements of shareholder expulsion of LLC.First of all,it elaborates that companies need to exhaust other more modest ways before exercising shareholder expulsion.And from the view of commercial appearance and the essence of shareholder expulsion rule,it puts forward that the existence of fault of the subjective state is not the premise of the application of shareholder expulsion.Then it combines the judicial cases to point out the problems of the reasons for the current system and proposes suggestions that the causes of expulsion should be moderately increased to regulate unfaithful behavior of shareholders.Finally it analyzes the problem of right attribution in detail and points out that the right should owe to companies.The third chapter expounds the procedural elements of shareholder expulsion of LLC.Firstly,it indicates that LLCs need to fulfill the obligation of urging,which is the pre-program of shareholder expulsion rule.Secondly,it points out the judicial practice obstacles of the voting mechanism of shareholder expulsion.Combining with outside legislative content,it puts forward that in the event of voting,the company shall use the majority voting method,and the company’s integrity shareholders shall have the obligation to vote actively.Finally,the paper analyzes the special procedural mechanism of shareholder expulsion from the perspective of the whole judicial interpretation,and elaborates its applicable rules from the two aspects of the expulsion of hidden shareholders and share buyers.The fourth chapter discusses the consequences of shareholder expulsion of LLC.At first,it analyzes the change patterns of shareholders’ qualification of a LLC under different causes of expulsion and the processing methods of shares of the expulsive shareholder and the order of methods application from the perspective of personality nature and reputation.Then it constructs the relief system of the shareholder from the two aspects of the shares price compensation and the dissenting litigation.Finally,the paper indicates the shareholder derivative litigation issues related to shareholder expulsion rule in combination with the different views of courts in trial practice.The final conclusion part reviews the contents of the full text,once again discusses the meaning of shareholder expulsion rule and the current problems and summers the recommendations of the causes of shareholder expulsion,the voting mechanism and the consequences of shareholder expulsion of the above article. |
