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On the Comparative Study of the Expulsion of Shareholder System of China and America

Author: ZhangJingJing
Tutor: YingZhenFang
School: Zhejiang Technology and Business University
Course: Civil and Commercial Law
Keywords: the expulsion of the shareholder Fails to perform the obligation ofcapital contribution capital flight
CLC: D922.291.91
Type: Master's thesis
Year: 2013
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Abstract


The expulsion of shareholder system is the last measure when the company is in the deadlock. Unless the shareholder requests the court to adjudicate the dissolution of the company. Needless to say, it is a new milestone of the company law regime in the history. This article is to analyze the18th article of Chinese<The Explanation of The Company Law (three)>, which involves the expulsion of shareholder system. This provision is only the prototype system that needs to make much more perfect. Writing this article uses company law theory as the basis for analysis. In the comparative law perspective, it compares the similarities and differences of the Chinese expulsion of shareholders with the American one so as to clarify the main body and the object, contents and consequences of the expulsion of the shareholders and make the system fullness and perfection.Firstly, the main body. The main body of the expulsion of shareholder system of the United States consists of the company and the court. In China, the law only requires the company. I believe that our expulsion of shareholder system should be applicable to the court only. Because the "invalidating confirmation" of the court is essential for the expulsion of shareholder system in order to truly protect the legitimate rights and interests of all parties, whether observant party or not.Secondly, the object. The expulsion of shareholder systems of the America and China are limited to the limited liability company. I also believe that the system should only apply to the limited liability company. As for the corporation, the worst problem is that the inherent nature is not suitable for the expulsion of shareholder system.Thirdly, the content. The America gives authority for the company to create the subjects of the expulsion of shareholder. And also make them to define that:" Fails to perform the obligation of capital contribution; breach of non-compete obligation; improper execution behavior; others." In China, the law provides two cases that:"failure to fulfill obligations " and "capital flight ". I believe that even if we agreed to give the company to create the subjects of the expulsion of shareholder, we also recognize or reject the validity of its removal through the court’s decision. There is a noteworthy that we should also address resolutions of the board of shareholders. American resolution needs all the shareholders’agreement. In China, the resolution of the board of shareholders which is also as a core merely as an ordinary one now. I believe the resolution of the board of shareholders should be as a special resolution which must be approved by more than two-thirds of the voting rights of the shareholders.Lastly, the consequences. American Law provides the " Repurchase " and " determination of the court " as the legal consequences of the expulsion of shareholder. Consequences of the expulsion of shareholder of the provisions are not clearly defined in China. I also believe that our country should apply to the two consequences that reduction program and the share-transfer system clearly.This article will make the perspective of comparative law to compensate gaps of the expulsion of the shareholder system. Meanwhile, we hope the legislative research could provide modest means to improve the expulsion of the shareholder system of China.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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