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Legal Explore and Analyse on the Cognizance of Shareholder Qualification of a Limited Liability Company

Author: LiuRuGeng
Tutor: ChenZuoSong
School: East China University of Political Science
Course: Legal
Keywords: Shareholder qualification Evidence analysis Standard for Cognizance New eclecticism
CLC: D922.291.91
Type: Master's thesis
Year: 2011
Downloads: 59
Quote: 0
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Abstract


This paper consists of three parts: Introduction, Main body and Conclusion.The main body explores several legal issues related to the Qualification of shareholders of Limited Liability Company from three aspects.The first part introduces the concept of shareholder as well as its qualification. It provides a new definition of the shareholder qualification. It is argued in this paper the qualification can both be the requirement and identity of shareholders. The disputes concerning the shareholder qualification not only occur between the company and shareholders, shareholders themselves, company and the thirty party, shareholders and the thirty part, but also between the company and staff members. The main scope of the shareholder qualification cognizance should be widened, including the staff members or the third party exclusive of the company. In this part, the property of stock equity as well as its position in civil rights has been further discussed and two solutions have been proposed. The equity power has been categorized. Meanwhile, some research has been done to the restriction and transfer of stock equity power. This part also lists the acquisition or loss of the shareholder qualification and focuses on the theoretical foundation and constitutive requirements of Civil Law concerning bona fide acquisition. It argues that Bona fide acquisition is the third means of stock equity acquisition next to Original acquisition and Derivative acquisition. Lastly, the application of equity expulsion in our country is also elaborated on .The second part discusses the function of such fact and evidence as Articles of Company, Register of Shareholders, Investment Certificate, Industry and commerce registration materials, the actual exercise of the shareholder’s rights in the cognizance of stockholder-qualification. It is suggested that the corresponding civil liability, administrative liability and criminal liability should be increased in the revision of the Company Law with regard to those staff members who do not fulfill obligations of setting Register of Shareholders. This part also introduces and reviews the standard for substantial requirements , formal requirements , eclecticism and contract recognition , internal autonomy and external industrial and commercial registration, contribution and confirmation of the company as well as certain articles of Supreme People’s Court’s Judicial Interpretation of Company Law :Part 3 . It also amends the standard for eclecticism , expands the understanding of substantial requirements and identifies the Shareholders’Committee Resolution, Investment Agreement and Equity Transfer Contract as the important evidence. It further argues that in specific cases the applicable contract standard should be aimed at different legal relations rather than adopt an absolute standard. A new standard for eclecticism has also been proposed in the paper.The third part focuses on the cognizance of qualifications in the following cases: shareholders in the restructuring of enterprises, shareholders with the illegal gains, shareholders with contribution defects, shareholders in equity transfer, equity transfer by the secret shareholder,“two sell of one stock”, imposter shareholders, borrow shareholders and dormant shareholders.The conclusive part summarizes the innovativeness of this thesis.The new standard of eclecticism proposed in this thesis provides some insights into the cognizance of shareholder qualification.

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