论有限责任公司股东知情权
本站原创 论文中文摘要：股权白勺不断分散和高度集中呈两极化发展趋,股东对公司白勺实际控制能力不断地受到削弱,公司白勺治理结构从股东大会中心主义向董事会中心主义再向职业经理人中心主义过渡,这种新白勺形势下,如何有效地保护股东白勺知情权便成为各国公司立法和公司实践必须着力解决白勺一个重大问题。本文研究有限责任公司股东知情权是以股东知情权白勺权利属性作为视角,通过对股东知情权社员权性质白勺确定,总结出有限责任公司股东知情权白勺特点,在权利属性白勺视野下通过比较世界各国白勺规定,结合我国白勺法律传统和公司发展白勺现状对研究股东知情权白勺范围、限制和扩张、行使方式等难点问题,在立法和司法两个层面进行力一次全面厘清,在此基础上提出完善相关立法白勺建议
Abstract（英文摘要）：www.328tibEt.cn Since entering the 20th century, the unceasing decentralization and the high-degree concentration of the company’s share rights assume the development trend of two polarization, the actual control to the company of the shareholder are weakening unceasingly, and the shareholder’s status in the company is becoming more and more not worthy of mentioning. The domination of many large-scale limited liability company has already fallen into the hand of the company’s management, and there appears the tendency of separation between the possession and the control. The governing structure of the company is transiting from the center of general meeting of the shareholders to the center of the board of directors. Along with the human body conversion of the board of directors, the professional manager is becoming the center of the company authority. Under the new situation, how to protect the shareholder’s benefit has become the major issue that the company legislation of various countries and the company practices must strengthen to solve. Relative to the strong capital-jointing property of the joint-stock company as well as shareholder’s speculation, a company with limited liability is more obvious in the property of person jointing, and the shareholder’s sense of participating and supervising the company’s affair is fairly strong. In the mean while, the company with limited liability, as the main form of enterprises in China, holds the pivotal function in the national economy. The theoretical research and the perfection of related legislation and the research on protecting the truth-learning right of the shareholder of the company with limited liability are necessary for further study.The research on the truth-learning right of the shareholder in this paper takes the perspective of right property on the basis of the shareholder’s truth-learning right. By defining the quality of the truth-learning right of the shareholder, studying the range of the truth-learning right of the shareholder and the exercising method and other difficult problems, this paper makes a thorough clearing to the truth-learning right of the shareholder of the company with limited liability from two aspects of legislation and judicature, in a hope of making proposals for legislation and providing the reference for the practical trial.In the first chapter, the writer makes a brief introduction to the truth-learning right of the shareholder. Firstly, by tracing the history of the truth-learning right of the shareholder, the conclusion is made that the protection to the truth-learning right of the shareholder assumes the gradually strong protection tendency along with the separation between the property right and the operation right. The paper also introduces the current understanding to the concept of the truth-learning right of the shareholder in the learning circle. The concept of the truth-learning right has two aspects in the public law and the private law. In speaking of the aspect of the public law, under the constitutional government system, the citizen should be entrusted with the truth-learning right to the public information. The truth-learning right of the shareholder is a power in the aspect of the private law. The concept of the truth-learning right of the shareholder is not the legal term appearing in the“Company Law”, but the theory concept of China summarized after gathering and abstracting a group of shareholders rights. This chapter introduces the stipulation of the truth-learning right in the developed countries, namely the truth-learning right includes the inspection right to financial report, the inquiry right to the accounting book, and the selecting and appointing right of the inspector. It also sets forth the three ways for the shareholder to realize the truth-learning right by the company’s disclosure obligation, shareholder’s self-reliant realization and the assistance of the directors and managers.In the second chapter, the writer, by analyzing the concept and property of the truth-learning right of the shareholder, especially by criticizing the share property right theory, the creditor’s right theory (the new creditor’s right theory), the shareholder’s status theory, the independent right theory, defines that the property of the shareholder’s right belongs to the associator’s right, in the mean while, carries out argument on the three big loopholes against the property of the shareholder’s right of the associator’s right by the learning world. The writers think that the shareholder’s rights or the associator’s right enjoyed under the base of qualifications is only in the logically deducing, in the reality, the two does not he the fore-and-aft relation; The one-person company is the exception of the company association, needless to link it with the main body or bring into the main body; The traner shareholder’s right first must be understood as the investment traner, and the consignee contributes to obtain the shareholder qualifications by the method of consignment, not the traner of status or qualification.In the third chapter, the writer, starting from the property of the associator’s right, makes the research of the right property of the truth-learning right of the shareholder, pointing out the truth-learning right is one of the shareholder’s rights, the shareholder’s right has the property of the associator’s right, however these three rights he its characteristics respectively. The writer summarizes the four characteristics of the truth-learning right in the company with limited liability: the truth-learning right is the exclusive right related to the associator’s qualification and the shareholder’s status; the truth-learning right is the compound right, not the unitary right; the truth-learning right is the right concurrently of public benefit and self-profit; the truth-learning right is the inherent right of the shareholder, no depriving by the form of articles of association or contract deprives, and the shareholder shall not give up this right; the truth-learning right is the independent right of the shareholder; the truth-learning right is equal in the company with limited liability, etc.In the fourth chapter, the writers carries on the brand-new elaboration on the difficult and hot topics of the truth-learning right in a company with limited liability under the perspective of right nature, pointing out that the supervisor could not relieve its supervisory right through the know the lawsuit of the truth-learning right; the retreated shareholder from the company and the anonymous shareholder and the reputed shareholder has no right of requesting to exercise the truth-learning right before becoming the revealed shareholder; the newly joined shareholder may only exercise the truth-learning to the operation information after its joining; the un-contributed shareholder should equally enjoy the truth-learning right; and the shareholder’s inspecting to the accounting book shall restricted by the rightness of goal; limit; The boundary of the truth-learning right of the shareholder shall include the inspection right to financial report, the inquiry right to the accounting book, and the selecting and appointing right of the inspector. The inquiry right to the accounting book does not include the original financial voucher; the scope of the truth-learning right may be expanded through the articles of association or the contract, but may nit be reduced, nor deprived by any form. The shareholder may not exercise its truth-learning right under certain circumstances, but may not to give up its truth-learning right; The legal theory foundation of the shareholder’s inquiry is the right for the shareholder to attend the shareholders meeting (attendance right) or the voting right in the general meeting, not suitable for bringing into line with the system of the truth-learning right to protect; the selecting and appointing right of the inspector belongs to the minor shareholder right, not in conformity with the property of same share same right in a company with limited liability, thus only suitable for the joint-stock company with multitudinous shareholders; The limitation of violating the truth-learning right of shareholder shall be“the request right establishing theory”, and referring to the French stipulation, sets as three years, namely the shareholder may consult the corporate the financial report and the accounting book within three years.In the fifth chapter, by researching the current circumstance on the legislation of the truth-learning right of shareholder in China, the writer thinks that, combining the company law in broad sense and narrow sense, the law of China concerning the scope and exercising method on the truth-learning right of shareholder is basically proper. The writer do not agree to put the inquiry right and the inspection in the scope of the truth-learning right because it may destroy the company’s governing structure and its operation. To say from the realistic demand and the right nature, the writer suggests the system for selecting and appointing the inspector (consulting the accounting book) of the truth-learning right shall be established in China. When the applicant applies for consulting the financial report and accounting book of the company, if an attorney is needed to exercise the truth-learning right, the application on the attorney’s selection and appointment shall be raised together. The applicant may choose the lawsuit or non-lawsuit procedure. If the company does not agree with the non-lawsuit procedure, the court shall try in the lawsuit procedure. The treatment in the non-lawsuit procedure shall be completed within one month, and no appeal shall be made against the treat result of the court. Finally the writer makes proposals on the judicial protection idea on the truth-learning right of the shareholder, namely the right must in every sense be protected, but when the right crosses boundary, it shall not be protected. The judge’s duty is to make a clear borderline in the fuzzy region, which is also the judge’s level, moreover, the judge’s conscience.
论文关键词： 有限责任公司；股东知情权；权利属性；立法完善；
Abstract（英文摘要）：www.328tibEt.cn Since entering the 20th century, the unceasing decentralization and the high-degree concentration of the company’s share rights assume the development trend of two polarization, the actual control to the company of the shareholder are weakening unceasingly, and the shareholder’s status in the company is becoming more and more not worthy of mentioning. The domination of many large-scale limited liability company has already fallen into the hand of the company’s management, and there appears the tendency of separation between the possession and the control. The governing structure of the company is transiting from the center of general meeting of the shareholders to the center of the board of directors. Along with the human body conversion of the board of directors, the professional manager is becoming the center of the company authority. Under the new situation, how to protect the shareholder’s benefit has become the major issue that the company legislation of various countries and the company practices must strengthen to solve. Relative to the strong capital-jointing property of the joint-stock company as well as shareholder’s speculation, a company with limited liability is more obvious in the property of person jointing, and the shareholder’s sense of participating and supervising the company’s affair is fairly strong. In the mean while, the company with limited liability, as the main form of enterprises in China, holds the pivotal function in the national economy. The theoretical research and the perfection of related legislation and the research on protecting the truth-learning right of the shareholder of the company with limited liability are necessary for further study.The research on the truth-learning right of the shareholder in this paper takes the perspective of right property on the basis of the shareholder’s truth-learning right. By defining the quality of the truth-learning right of the shareholder, studying the range of the truth-learning right of the shareholder and the exercising method and other difficult problems, this paper makes a thorough clearing to the truth-learning right of the shareholder of the company with limited liability from two aspects of legislation and judicature, in a hope of making proposals for legislation and providing the reference for the practical trial.In the first chapter, the writer makes a brief introduction to the truth-learning right of the shareholder. Firstly, by tracing the history of the truth-learning right of the shareholder, the conclusion is made that the protection to the truth-learning right of the shareholder assumes the gradually strong protection tendency along with the separation between the property right and the operation right. The paper also introduces the current understanding to the concept of the truth-learning right of the shareholder in the learning circle. The concept of the truth-learning right has two aspects in the public law and the private law. In speaking of the aspect of the public law, under the constitutional government system, the citizen should be entrusted with the truth-learning right to the public information. The truth-learning right of the shareholder is a power in the aspect of the private law. The concept of the truth-learning right of the shareholder is not the legal term appearing in the“Company Law”, but the theory concept of China summarized after gathering and abstracting a group of shareholders rights. This chapter introduces the stipulation of the truth-learning right in the developed countries, namely the truth-learning right includes the inspection right to financial report, the inquiry right to the accounting book, and the selecting and appointing right of the inspector. It also sets forth the three ways for the shareholder to realize the truth-learning right by the company’s disclosure obligation, shareholder’s self-reliant realization and the assistance of the directors and managers.In the second chapter, the writer, by analyzing the concept and property of the truth-learning right of the shareholder, especially by criticizing the share property right theory, the creditor’s right theory (the new creditor’s right theory), the shareholder’s status theory, the independent right theory, defines that the property of the shareholder’s right belongs to the associator’s right, in the mean while, carries out argument on the three big loopholes against the property of the shareholder’s right of the associator’s right by the learning world. The writers think that the shareholder’s rights or the associator’s right enjoyed under the base of qualifications is only in the logically deducing, in the reality, the two does not he the fore-and-aft relation; The one-person company is the exception of the company association, needless to link it with the main body or bring into the main body; The traner shareholder’s right first must be understood as the investment traner, and the consignee contributes to obtain the shareholder qualifications by the method of consignment, not the traner of status or qualification.In the third chapter, the writer, starting from the property of the associator’s right, makes the research of the right property of the truth-learning right of the shareholder, pointing out the truth-learning right is one of the shareholder’s rights, the shareholder’s right has the property of the associator’s right, however these three rights he its characteristics respectively. The writer summarizes the four characteristics of the truth-learning right in the company with limited liability: the truth-learning right is the exclusive right related to the associator’s qualification and the shareholder’s status; the truth-learning right is the compound right, not the unitary right; the truth-learning right is the right concurrently of public benefit and self-profit; the truth-learning right is the inherent right of the shareholder, no depriving by the form of articles of association or contract deprives, and the shareholder shall not give up this right; the truth-learning right is the independent right of the shareholder; the truth-learning right is equal in the company with limited liability, etc.In the fourth chapter, the writers carries on the brand-new elaboration on the difficult and hot topics of the truth-learning right in a company with limited liability under the perspective of right nature, pointing out that the supervisor could not relieve its supervisory right through the know the lawsuit of the truth-learning right; the retreated shareholder from the company and the anonymous shareholder and the reputed shareholder has no right of requesting to exercise the truth-learning right before becoming the revealed shareholder; the newly joined shareholder may only exercise the truth-learning to the operation information after its joining; the un-contributed shareholder should equally enjoy the truth-learning right; and the shareholder’s inspecting to the accounting book shall restricted by the rightness of goal; limit; The boundary of the truth-learning right of the shareholder shall include the inspection right to financial report, the inquiry right to the accounting book, and the selecting and appointing right of the inspector. The inquiry right to the accounting book does not include the original financial voucher; the scope of the truth-learning right may be expanded through the articles of association or the contract, but may nit be reduced, nor deprived by any form. The shareholder may not exercise its truth-learning right under certain circumstances, but may not to give up its truth-learning right; The legal theory foundation of the shareholder’s inquiry is the right for the shareholder to attend the shareholders meeting (attendance right) or the voting right in the general meeting, not suitable for bringing into line with the system of the truth-learning right to protect; the selecting and appointing right of the inspector belongs to the minor shareholder right, not in conformity with the property of same share same right in a company with limited liability, thus only suitable for the joint-stock company with multitudinous shareholders; The limitation of violating the truth-learning right of shareholder shall be“the request right establishing theory”, and referring to the French stipulation, sets as three years, namely the shareholder may consult the corporate the financial report and the accounting book within three years.In the fifth chapter, by researching the current circumstance on the legislation of the truth-learning right of shareholder in China, the writer thinks that, combining the company law in broad sense and narrow sense, the law of China concerning the scope and exercising method on the truth-learning right of shareholder is basically proper. The writer do not agree to put the inquiry right and the inspection in the scope of the truth-learning right because it may destroy the company’s governing structure and its operation. To say from the realistic demand and the right nature, the writer suggests the system for selecting and appointing the inspector (consulting the accounting book) of the truth-learning right shall be established in China. When the applicant applies for consulting the financial report and accounting book of the company, if an attorney is needed to exercise the truth-learning right, the application on the attorney’s selection and appointment shall be raised together. The applicant may choose the lawsuit or non-lawsuit procedure. If the company does not agree with the non-lawsuit procedure, the court shall try in the lawsuit procedure. The treatment in the non-lawsuit procedure shall be completed within one month, and no appeal shall be made against the treat result of the court. Finally the writer makes proposals on the judicial protection idea on the truth-learning right of the shareholder, namely the right must in every sense be protected, but when the right crosses boundary, it shall not be protected. The judge’s duty is to make a clear borderline in the fuzzy region, which is also the judge’s level, moreover, the judge’s conscience.
论文关键词： 有限责任公司；股东知情权；权利属性；立法完善；