股东知情权研究
本站原创 论文中文摘要：《中华人民共和国公司法》对于股东知情权有较为明确白勺规定,但基本属于宣告性质白勺,内容较为简单,而学术著作中关于股东知情权白勺内容不多,几乎没有这方面白勺专著,学者白勺研究也不够充分和深入,仅仅是对股东知情权做一般性白勺介绍和评述,无法有效地指导司法实践。鉴于理论来源于实践并指导实践,本文秉承股东权保护白勺原则,从简述股东知情权开始,评述我国目前股东知情权存在白勺主要问题,并对这些问题进行较为深入白勺法学思考,最后在借鉴我国台湾地区、美国和欧盟立法白勺基础上,结合中国白勺现实国情,建构符合当今世界潮流白勺具有中国特色白勺股东知情权制度
Abstract（英文摘要）：www.328tibEt.cn Modern corporations take the separation of ownership and operation right as the principle, which makes most shareholders unable to be involved in operation management, and the power of daily operation, daily decision is controlled by the board of directors and managers. Thus, shareholders are put in a disadvantage situation of asymmetry information in the process of obtaining the expected interests; their interests must be thrown into a position with significant risk. The Shareholder’s Right to Know is the basic one for shareholders, and they he the right to know the true situation of the company operation, especially those middle and all shareholders who are willing to he the equal right with big shareholder to know the information. It is the key content of company law systems in various countries in the modern world to identify the Shareholder’s Right to Know, and to give more efforts to protect it. Meanwhile, the system design of the right to learn the truth is not only connected with the achievement of shareholders’interests, but also has an impact on the protection of the company’s interests. With the protection of shareholders’right as the principle, starting from the introduction of the Shareholder’s Right to Know, the article comments on the major problems existed in China’s present Shareholder’s Right to Know, and studying these problems deeply from the perspective of laws. In the end of the article, by referencing to the legislations of Taiwan Province, America and EU and combining China’s national conditions, the construction of the Shareholder’s Right to Know system with Chinese characteristics and conforming to the world trend is suggested.This thesis is divided into 4 parts.Part 1 is the introduction of China’s Shareholder’s Right to Know system.First, the relevant legislation is carded. Comparing the relative regulations in the old and new Company Law, it is found that, the current Company Law loosens the scope of the exercise of the Shareholder’s Right to Know in limited liability companies and joint stock companies, and defines the copy right of shareholders in limited liability companies. Shareholder’s right to know the truth is accepted and respected by laws in a larger degree. There are many differences in regulations of the current Company Law on limited liability companies and joint stock companies, which are expressed in the scope of the right to know the truth and the way to exercise right.Second is the classification analysis on China’s relevant proceedings. It can be classified based on the reason for taking proceedings for the Shareholder’s Right to Know, including asking to know the operation situation, the financial situation, and then asking for dividends, asking to know the operation situation but not enough, thus, the proceedings is brought up. Because of the liquidation of the company, the proceedings for the right to know the truth is taken in order to know the financial situation. The shareholders’status is established through the right to know the truth. The plaintiff party can be shareholders of two companies with same operation features, if the plaintiff’s right to know the truth are restricted in one company; the plaintiff party can take the proceedings for the Shareholder’s Right to Know. All in all, the plaintiff party can take the above categories of proceedings for the Shareholder’s Right to Know if the plaintiff thinks the legal representative of the company impairs shareholders’interest. It can also be categorized based on the scope of the company files that requested to be accessed to, including requesting to he the right to know the truth according to Company Law, asking for relevant financial certifications such as business invoices, bank statements, requesting to provide information on shareholder surplus allocation, and requesting to provide company financial accounting report after auditing.Finally, the problems existed in China’s relevant systems are pointed out. First, the definition of the subject scope that exercise the Shareholder’s Right to Know is ambiguous, including the withdrawn shareholders’qualification to be the litigation subject, special shareholders’right to know the truth (in the case that the plaintiff party is not only the shareholder, but also is or was the director), and whether the actual contributor or the silent partner can exercise the right to know the truth. Second, the obligation subject of the Shareholder’s Right to Know is defined too narrow, that is, whether majority shareholders or actual controllers who prevent the implementation of the Shareholder’s Right to Know in the dispute of the right to know the truth can be taken as codefendants and make them take the legal responsibility. Third, the limitation of the Shareholder’s Right to Know is not very clear. The regulation of Company Law on accounting books is still insufficient in practice, which is manifested in the following aspects: the demarcation line between accounting books and accounting documents is ambiguous, whether the accounting book reviewing right includes accounting documents is not clear, and there is no stipulation on the reviewing of accounting documents. Forth, the understanding of“purpose legitimacy”can be various, which means it is difficult to control whether the purpose of shareholders’reviewing on accounting books is legitimate or not. Fifth, the allocation of the burden of proof is relatively ambiguous. Cases of the Shareholder’s Right to Know can he many types due to different requirements, thus, it is difficult to request or examine the burden of proof with a single standard in the proceedings.In Part 2, some basic theoretical issues on the Shareholder’s Right to Know is discussed.On the subject of the Shareholder’s Right to Know, firstly, the identification of actual contributors and shareholders are discussed. Financial contribution is the major obligation of shareholders, but not the prerequisite to identify shareholders’qualification. Whether shareholders perform the contribution obligation is not directly related to whether shareholders he the right to know the truth or not. Corresponding to the Shareholder’s Right to Know is the obligation that shareholders should take civil responsibility correspondingly in the registered contribution scope. According to the principle of consistency between right and obligation, shareholders who do not contribute capital should also he the right to know when they take corresponding civil responsibility. Secondly, the scope of shareholders’right to know who are with multiple identities is studied. Pure shareholders (shareholders who are only company shareholders) and shareholders with multiple identities (people who are not only shareholders, but also directors, or managers or in other higher managing positions) should be protected in the same way. Also, the problem of people’s right to know who are in higher managing positions is not a one can be solved by law. Finally, the problem of shareholders’right to know who withdraw the company is discussed. The plaintiff shareholders who take the proceedings for the Shareholder’s Right to Know can not be limited to the current shareholders in the defendant company.On the scope of the Shareholder’s Right to Know, the right to know the financial information does not include accounting documents in principle, but, if there are special agreement in company’s regulation or in special situations, the justice can break through this restriction and support the party’s requirement to review original accounting documents. The financial reports that the company offers to shareholders should be audited.In the aspect of the exercise condition of the Shareholder’s Right to Know, shareholders of the limited liability company should comply with the following conditions when they review accounting books by using the right to know: the purpose to use the right to know should be legitimate, that is, they should exercise the right for protecting their own legitimate rights or for the interests of the company or other shareholders; also, shareholders should exercise the right to know in a certain period and in the place appointed by the company.In the aspect of the allocation of the burden of proof, cases of request for reviewing and copying regulations, minutes and resolutions, cases of reviewing and copying financial accounting reports, cases of excising the right to review financial accounting reports and cases of request for reviewing original accounting documents should be distinguished.Part 3 is about the legislations of relevant countries and areas.First is the introduction of general regulations. The author holds the points that China should take legislations of Taiwan area, American and EU as reference, and also, the author refers to other countries’stipulations on the Shareholder’s Right to Know. Second is the content of the Shareholder’s Right to Know. Various countries and regions he different stipulations on the types of financial accounting reports that shareholders he the right to review. The ways of reviewing financial accounting reports should be different in the limited liability company and the joint stock company. As to the right to review books, legislations of advanced companies try to expand the books scope of shareholders’right to review, and files related to financial accounting reports and operation management situation all generally belong to the scope of right to review. Third is stipulations on the exercise conditions of the Shareholder’s Right to Know, which include the registration period of shareholders and their share-holding ratio, the purpose for reviewing books is legal and the exercise of the right to know should be in a reasonable period.In part 4, the reasonable design of China’s Shareholder’s Right to Know is suggested.As Company Law has both mandatory feature and random feature, we should take this into consideration when redesign the Shareholder’s Right to Know, among which, the most direct is that we should consider differently according to the type of the company. In clauses of Company Law, a stipulation on the Shareholder’s Right to Know concerning the limited liability company should be except that there are special stipulation in company regulations. The Shareholder’s Right to Know implies the interest conflict between shareholders and the company. Considering the interests measurement, it is necessary for us to make some limitations on the scope of the Shareholder’s Right to Know, and try to find the balancing point between the two. As the company’s operation activities are various, the law can not list all items that should be known to shareholders of one company or shareholders in the same group. As the Shareholder’s Right to Know is related to the interest conflict between shareholders and the company, it is necessary to make limitations on shareholders’purpose, method, time and the place to review and on others in some items. The reasonable legislation structure of China’s Company Law on the Shareholder’s Right to Know should be: Shareholders he the right to know all information related to company operation activities, but, company regulations or relevant laws can make necessary limitations on the exercise of the right to know according to the importance of the information for the company interest
论文关键词： 股东知情权；财务会计报告查阅权；账簿查阅权；
Abstract（英文摘要）：www.328tibEt.cn Modern corporations take the separation of ownership and operation right as the principle, which makes most shareholders unable to be involved in operation management, and the power of daily operation, daily decision is controlled by the board of directors and managers. Thus, shareholders are put in a disadvantage situation of asymmetry information in the process of obtaining the expected interests; their interests must be thrown into a position with significant risk. The Shareholder’s Right to Know is the basic one for shareholders, and they he the right to know the true situation of the company operation, especially those middle and all shareholders who are willing to he the equal right with big shareholder to know the information. It is the key content of company law systems in various countries in the modern world to identify the Shareholder’s Right to Know, and to give more efforts to protect it. Meanwhile, the system design of the right to learn the truth is not only connected with the achievement of shareholders’interests, but also has an impact on the protection of the company’s interests. With the protection of shareholders’right as the principle, starting from the introduction of the Shareholder’s Right to Know, the article comments on the major problems existed in China’s present Shareholder’s Right to Know, and studying these problems deeply from the perspective of laws. In the end of the article, by referencing to the legislations of Taiwan Province, America and EU and combining China’s national conditions, the construction of the Shareholder’s Right to Know system with Chinese characteristics and conforming to the world trend is suggested.This thesis is divided into 4 parts.Part 1 is the introduction of China’s Shareholder’s Right to Know system.First, the relevant legislation is carded. Comparing the relative regulations in the old and new Company Law, it is found that, the current Company Law loosens the scope of the exercise of the Shareholder’s Right to Know in limited liability companies and joint stock companies, and defines the copy right of shareholders in limited liability companies. Shareholder’s right to know the truth is accepted and respected by laws in a larger degree. There are many differences in regulations of the current Company Law on limited liability companies and joint stock companies, which are expressed in the scope of the right to know the truth and the way to exercise right.Second is the classification analysis on China’s relevant proceedings. It can be classified based on the reason for taking proceedings for the Shareholder’s Right to Know, including asking to know the operation situation, the financial situation, and then asking for dividends, asking to know the operation situation but not enough, thus, the proceedings is brought up. Because of the liquidation of the company, the proceedings for the right to know the truth is taken in order to know the financial situation. The shareholders’status is established through the right to know the truth. The plaintiff party can be shareholders of two companies with same operation features, if the plaintiff’s right to know the truth are restricted in one company; the plaintiff party can take the proceedings for the Shareholder’s Right to Know. All in all, the plaintiff party can take the above categories of proceedings for the Shareholder’s Right to Know if the plaintiff thinks the legal representative of the company impairs shareholders’interest. It can also be categorized based on the scope of the company files that requested to be accessed to, including requesting to he the right to know the truth according to Company Law, asking for relevant financial certifications such as business invoices, bank statements, requesting to provide information on shareholder surplus allocation, and requesting to provide company financial accounting report after auditing.Finally, the problems existed in China’s relevant systems are pointed out. First, the definition of the subject scope that exercise the Shareholder’s Right to Know is ambiguous, including the withdrawn shareholders’qualification to be the litigation subject, special shareholders’right to know the truth (in the case that the plaintiff party is not only the shareholder, but also is or was the director), and whether the actual contributor or the silent partner can exercise the right to know the truth. Second, the obligation subject of the Shareholder’s Right to Know is defined too narrow, that is, whether majority shareholders or actual controllers who prevent the implementation of the Shareholder’s Right to Know in the dispute of the right to know the truth can be taken as codefendants and make them take the legal responsibility. Third, the limitation of the Shareholder’s Right to Know is not very clear. The regulation of Company Law on accounting books is still insufficient in practice, which is manifested in the following aspects: the demarcation line between accounting books and accounting documents is ambiguous, whether the accounting book reviewing right includes accounting documents is not clear, and there is no stipulation on the reviewing of accounting documents. Forth, the understanding of“purpose legitimacy”can be various, which means it is difficult to control whether the purpose of shareholders’reviewing on accounting books is legitimate or not. Fifth, the allocation of the burden of proof is relatively ambiguous. Cases of the Shareholder’s Right to Know can he many types due to different requirements, thus, it is difficult to request or examine the burden of proof with a single standard in the proceedings.In Part 2, some basic theoretical issues on the Shareholder’s Right to Know is discussed.On the subject of the Shareholder’s Right to Know, firstly, the identification of actual contributors and shareholders are discussed. Financial contribution is the major obligation of shareholders, but not the prerequisite to identify shareholders’qualification. Whether shareholders perform the contribution obligation is not directly related to whether shareholders he the right to know the truth or not. Corresponding to the Shareholder’s Right to Know is the obligation that shareholders should take civil responsibility correspondingly in the registered contribution scope. According to the principle of consistency between right and obligation, shareholders who do not contribute capital should also he the right to know when they take corresponding civil responsibility. Secondly, the scope of shareholders’right to know who are with multiple identities is studied. Pure shareholders (shareholders who are only company shareholders) and shareholders with multiple identities (people who are not only shareholders, but also directors, or managers or in other higher managing positions) should be protected in the same way. Also, the problem of people’s right to know who are in higher managing positions is not a one can be solved by law. Finally, the problem of shareholders’right to know who withdraw the company is discussed. The plaintiff shareholders who take the proceedings for the Shareholder’s Right to Know can not be limited to the current shareholders in the defendant company.On the scope of the Shareholder’s Right to Know, the right to know the financial information does not include accounting documents in principle, but, if there are special agreement in company’s regulation or in special situations, the justice can break through this restriction and support the party’s requirement to review original accounting documents. The financial reports that the company offers to shareholders should be audited.In the aspect of the exercise condition of the Shareholder’s Right to Know, shareholders of the limited liability company should comply with the following conditions when they review accounting books by using the right to know: the purpose to use the right to know should be legitimate, that is, they should exercise the right for protecting their own legitimate rights or for the interests of the company or other shareholders; also, shareholders should exercise the right to know in a certain period and in the place appointed by the company.In the aspect of the allocation of the burden of proof, cases of request for reviewing and copying regulations, minutes and resolutions, cases of reviewing and copying financial accounting reports, cases of excising the right to review financial accounting reports and cases of request for reviewing original accounting documents should be distinguished.Part 3 is about the legislations of relevant countries and areas.First is the introduction of general regulations. The author holds the points that China should take legislations of Taiwan area, American and EU as reference, and also, the author refers to other countries’stipulations on the Shareholder’s Right to Know. Second is the content of the Shareholder’s Right to Know. Various countries and regions he different stipulations on the types of financial accounting reports that shareholders he the right to review. The ways of reviewing financial accounting reports should be different in the limited liability company and the joint stock company. As to the right to review books, legislations of advanced companies try to expand the books scope of shareholders’right to review, and files related to financial accounting reports and operation management situation all generally belong to the scope of right to review. Third is stipulations on the exercise conditions of the Shareholder’s Right to Know, which include the registration period of shareholders and their share-holding ratio, the purpose for reviewing books is legal and the exercise of the right to know should be in a reasonable period.In part 4, the reasonable design of China’s Shareholder’s Right to Know is suggested.As Company Law has both mandatory feature and random feature, we should take this into consideration when redesign the Shareholder’s Right to Know, among which, the most direct is that we should consider differently according to the type of the company. In clauses of Company Law, a stipulation on the Shareholder’s Right to Know concerning the limited liability company should be except that there are special stipulation in company regulations. The Shareholder’s Right to Know implies the interest conflict between shareholders and the company. Considering the interests measurement, it is necessary for us to make some limitations on the scope of the Shareholder’s Right to Know, and try to find the balancing point between the two. As the company’s operation activities are various, the law can not list all items that should be known to shareholders of one company or shareholders in the same group. As the Shareholder’s Right to Know is related to the interest conflict between shareholders and the company, it is necessary to make limitations on shareholders’purpose, method, time and the place to review and on others in some items. The reasonable legislation structure of China’s Company Law on the Shareholder’s Right to Know should be: Shareholders he the right to know all information related to company operation activities, but, company regulations or relevant laws can make necessary limitations on the exercise of the right to know according to the importance of the information for the company interest
论文关键词： 股东知情权；财务会计报告查阅权；账簿查阅权；