1. Shareholders' right to know about the company's operating conditions (audit right)
In limited liability companies, the positions of chairman and general manager are often held by major shareholders, while minor shareholders are often left out in the cold, and their legitimate rights and interests are often violated by major shareholders.
In company practice, the reason why minority shareholders become weak in front of major shareholders and management mainly stems from the asymmetry in the possession of financial information and business information between minority shareholders and major shareholders and management. Many minority shareholders have been bullied and exploited by large shareholders for a long time, and they have been unable to get normal dividends from companies with good operating efficiency for a long time. The main institutional root is that minority shareholders cannot audit their accounts.
Regarding minority shareholders' right to know, Article 32 of the old Company Law stipulates that "shareholders have the right to consult the minutes of shareholders' meetings and the company's financial and accounting reports". In practice, what people usually call financial fraud is these financial statements; Because whether the minority shareholders have the right to consult the accounting books is not clearly written into the old company law, false financial reports have become a "secret weapon" for many large shareholders to hide the actual income of the company from the minority shareholders.
In order to ensure that minority shareholders fully understand the company's operating conditions and safeguard their legitimate rights and interests, the new Company Law extends the exercise scope of shareholders' right to know to: shareholders have the right to consult and copy the company's articles of association, minutes of shareholders' meetings, resolutions of board meetings, resolutions of board meetings and financial and accounting reports. Minority shareholders can consult the company's accounting books, especially the original vouchers, which is the key for minority shareholders to exercise their right to know.
When consulting the company's accounting books, minority shareholders should get the company's assistance and cooperation. In terms of specific access methods, minority shareholders can directly access the accounting books themselves, or hire lawyers and accountants to assist in the access.
Of course, minority shareholders who exercise the right of inspection should keep the business secrets of the company according to law. According to the provisions of Article 34 of the new Company Law, if the company has reasonable grounds to believe that minority shareholders have improper purposes in consulting accounting books, which may harm the legitimate interests of the company, it may refuse to provide access, and shall give a written reply to shareholders within 15 days from the date of their written request, explaining the reasons. However, the company shall bear the burden of proof for the improper purpose of consulting shareholders. If the company refuses to provide inspection without reason, the minority shareholders may file a lawsuit and request the people's court to force the company to provide inspection.
Second: the right to attend and vote at the shareholders' meeting.
The shareholders' meeting of a limited liability company is composed of all shareholders, who are the highest decision-making body of the company. It is by attending the shareholders' meeting that shareholders express their will and realize their right to participate in the company's major decisions and choose managers, thus realizing their property rights. As the investor of the company, the shareholders have the right to attend the shareholders' meeting and enjoy the right to vote according to the Company Law and the Articles of Association.
The voting right of shareholders attending the shareholders' meeting is the right of shareholders to express their attitudes on major issues of the company at the shareholders' meeting and the basic right to ensure shareholders to realize their expected investment interests.
1. Shareholders have the right to attend the general meeting of shareholders.
According to Article 42 of the Company Law, unless otherwise agreed by the articles of association and all shareholders, all shareholders shall be notified before the meeting 15. When convening a shareholders' meeting, the company must notify all shareholders of the meeting topics in advance and give them reasonable preparation time.
The shareholders' meeting shall make minutes of the decisions on the matters discussed, and the shareholders present at the meeting shall sign the minutes.
2. Shareholders have the right to vote.
According to Article 43 of the Company Law, under normal circumstances, shareholders of a limited liability company exercise their voting rights in proportion to their capital contribution. The more shareholders contribute, the more votes they enjoy, and the greater their role in voting, and vice versa.
In the case of special provisions on voting rights in the articles of association, the effectiveness of the articles of association takes precedence over the provisions of the company law. This reflects the legislative spirit of encouraging company autonomy in the Company Law.
Voting rights are generally exercised by shareholders themselves. Shareholders who are natural persons shall attend the shareholders' meeting in person and exercise their voting rights. Shareholders who are unable to attend the shareholders' meeting on time due to special reasons may entrust an agent to exercise their voting rights. If the shareholder is a legal person, the legal representative of the legal person or his authorized agent shall generally attend the shareholders' meeting and exercise the right to vote.
Three. Legal consequences of failing to notify shareholders to attend the shareholders' meeting
If all shareholders are not notified to convene a shareholders' meeting, the shareholders' meeting will make a resolution, which infringes on the right to attend and vote at the shareholders' meeting and violates the principle of equality of shareholders. The resolution is revocable according to law, and shareholders who have not received the notice of the meeting have the right to apply to the people's court for revoking the resolution.
Third: the right to transfer shares.
Independent legal person qualification and limited liability of shareholders are the two cornerstones of building a modern company. The law endows the company with the right and ability, making the company another civil subject different from shareholders; At the same time, the law gives the company limited liability, limiting the risk of shareholders to their share of capital contribution. Shareholders can use the company as a veil to reduce transaction costs, reduce business risks, seek to maximize economic benefits, and achieve results that sole proprietorship and partnership enterprises cannot achieve. Under normal circumstances, shareholders actively exercise their power to manage the company, influence and dominate the company's will, promote the company's interests, and then realize their own rights and interests. However, under special circumstances, shareholders' desire to maximize their own interests is frustrated and they are dissatisfied with the company, which may be because they have to realize their equity in order to seek better investment opportunities, or because they have to transfer their equity for some legal reasons. The company law gives shareholders the right to transfer shares.
The transfer of shareholders' rights in limited liability companies can be divided into two categories: one is internal transfer; The second is external adjustment. The so-called internal transfer, that is, the transfer between shareholders, means that shareholders transfer all or part of their shares to other shareholders of the company. Paragraph 1 of Article 72 stipulates that shareholders of a limited liability company may transfer all or part of their shares to each other. As long as there are no illegal transactions, the transfer between shareholders can be made without the consent of the company or the shareholders' meeting, and shareholders can make their own decisions.
The so-called external transfer means that some shareholders transfer all or part of their shares to a third party other than shareholders. In addition to the nature of joint venture, limited liability company also has the characteristics of joint venture. The operation of a limited liability company is inseparable from the trust relationship between shareholders, and the transfer of shares by shareholders to people other than shareholders may affect the good relationship between shareholders and the stability of the company. Therefore, the company law has strict restrictions on the external transfer of equity: first, when the shareholders' meeting votes on the transfer of equity, it is approved by more than half of all shareholders; Second, other shareholders of the company enjoy the preemptive right; Third, other shareholders have the right to dissent, but dissenting shareholders need to buy the transferred shares.
According to Article 72 of the Company Law, when a shareholder transfers its equity, it shall notify other shareholders in writing of their consent and give them a 30-day reply period; If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer.
For the transfer of shares by shareholders, if other shareholders abstain, it means that they are neither in favor of the transfer nor against the transfer; Or fails to attend the shareholders' meeting or entrusts others to attend, it shall be deemed as abstention. The expression of shareholders' abstention should be interpreted as beneficial to the transferor's transfer of shares, and it is deemed that other shareholders agree to transfer their shares to people other than shareholders of the company.
Other shareholders agree to buy the transferred equity, but the price given is lower than the price that the shareholder wants to transfer, which should generally be regarded as not contributing to the purchase, that is, agreeing to the transfer; Or deliberately delaying the time and deliberately lowering the transfer price, so that both parties to the equity transfer fail to go through the relevant transfer procedures according to law, it is generally regarded as agreeing to the transfer.
Fourth, the dissenting shareholders' right to claim for share repurchase.
In a limited company, the major shareholders often use their control over the company and do not distribute profits to shareholders for a long time, resulting in serious damage to the interests of minority shareholders. The minority shareholders of the company basically have no say in the company's operating principles and policies, and the transfer of equity is restricted, so dissident shareholders often cannot quit the company in time. In order to protect the legitimate rights and interests of minority shareholders, the new "Company Law" stipulates that when the company makes three specific major resolutions related to the company's development, dissenting shareholders can exercise the right to request share repurchase and withdrawal from the company if they disagree with the resolutions of the company's shareholders' meeting.
I. Conditions for dissenting shareholders to exercise their share repurchase rights:
1. There are three legal situations for minority shareholders to quit the company: ① the company has not distributed profits to shareholders for five consecutive years, but the company has made profits for five consecutive years and meets the conditions for distributing profits stipulated in this Law; (2) merger, division or major property transfer of the company; ③ When the business term stipulated in the Articles of Association expires or other dissolution reasons stipulated in the Articles of Association occur, the shareholders' meeting will adopt a resolution to amend the Articles of Association to make the Company survive.
2. Voted against the resolution of the shareholders' meeting on the above matters.
According to the Company Law, the decision-making power of the above matters falls within the scope of the company's shareholders' meeting, and resolutions should be made according to law. Shareholders who exercise the share repurchase right are limited to those who voted against the above resolution, and no other shareholders are allowed.
The exercise of the right of claim for share repurchase must meet the statutory conditions. In addition, shareholders have no right to ask the company to buy back their shares.
Two. Procedures for dissenting shareholders to exercise repurchase rights.
1. Dissenting shareholders ask the company to buy their shares.
When shareholders want to leave the company, they should set a reasonable price for their equity and ask the company to buy their equity. A reasonable price can be determined through negotiation or evaluation.
2. Bring a lawsuit to the people's court according to law.
When shareholders ask the company to purchase its equity, they should try their best to settle it through consultation. However, if shareholders and the company can't reach an agreement on stock purchase for a long time, Article 75 of the Company Law stipulates the right of prosecution of dissenting shareholders. That is, if the shareholders and the company fail to reach an equity purchase agreement within 60 days from the date of adoption of the resolution of the shareholders' meeting, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. Dissenting shareholders who exercise the right to share repurchase shall bring a lawsuit within the time limit prescribed by law, and overdue shall be regarded as waiver of their rights.
Fifth: the right to dissolve the company.
In a limited liability company, shareholders often send directors and senior managers to the company according to their shareholding ratio, and control the company's operation through the directors and senior managers. The normal operation of the company is realized through the exercise of rights by shareholders and the exercise of functions and powers by the company management organization. Due to various reasons, conflicts and contradictions of interests often occur between shareholders or company managers, and obstacles often appear in the company's operation. When the conflict is serious, the company's operating mechanism often fails completely, including but not limited to: the shareholders' meeting, the board of directors, including the board of supervisors and other power institutions and management institutions can't make any resolutions on any matters of the company, all the affairs of the company are in a state of paralysis, and the company's operation is limited to deadlock.
The reason for the deadlock in the company lies in the majority voting system in the company's decision-making and management. According to the Company Law and Articles of Association, any resolution made by the shareholders' meeting, the board of directors and the board of supervisors requires the consent of more than half of the voting rights or the number of people, and any resolution made by the shareholders' meeting on capital increase, capital reduction, division, merger, dissolution, change of company form, modification of the articles of association, etc. requires the consent of more than two thirds of the voting rights or the number of people present at the meeting. In a limited liability company, there are few shareholders, especially only two shareholders, and the number of directors appointed by each shareholder is basically the same or the same. If there are serious oppositions, contradictions and conflicts among the shareholders of the company, neither party can form the voting majority required by the Company Law and the Articles of Association, and the resolution cannot be passed, then there will be a company deadlock.
With the emergence of corporate deadlock, shareholders lost the minimum trust, and the foundation of mutual cooperation completely collapsed. In this case, the party actually controlling the company often uses its rights to directly infringe on the rights and interests of the other party.
In order to solve the company deadlock, article 183 of the new company law stipulates that shareholders have the right to request the court to dissolve the company under the specific circumstances of the company deadlock.
When shareholders exercise the right to request the dissolution of the company, the court will generally strictly limit the conditions and carefully apply judicial coercion:
1. The company's operation and management must encounter serious difficulties, and its continued existence will cause great losses to the interests of shareholders;
2. Disputes between shareholders cannot be resolved by other means; Other channels include but are not limited to negotiation and mediation, equity transfer and equity repurchase.
3. Shareholders who request to dissolve the company must hold more than 10% of the voting rights of all shareholders of the company.
Shareholders must exercise their right to dissolve the company carefully, because once they enter the judicial process, the company needs to be liquidated, and the legal person qualification will soon be eliminated, which will cause huge losses to the company and all shareholders.