论股东的“账簿复制权”

Abstract

Article 33 in Chinese Corporation law keeps silent on whether shareholders are entitled to copy accounting records, which results in different judgments when different courts of justice deal with this issue. However, most of courts deny shareholders claim to copy accounting records, because they think the law doesn’t expressly authorize shareholders to do so and accounting records are trade secrets. This thesis draws such conclusions as below after comparative study on the relevant legal rules in the U.K., the U.S., Germany, japan and the Republic of Korea. Firstly, in the U.K., the U.S. and Germany, shareholders’ rights to know are not limited to written law. Secondly, those five countries list corporations’ financial information as important information to be released and design systems aimed at balancing shareholders’ rights to know and corporations’ interests. Thirdly, the right to inspect corporations’ financial conditions is bundled with the right to copy accounting records. This thesis questions Chinese courts’ decisions related to shareholders’ right to copy accounting records. The thesis have four reasons to support this opinion shareholders’ right to copy accounting record should be protected. Firstly, courts’ decisions are not consistent with “permissible unless forbidden” principle, which is the foundation of private law. The courts’ interpretation of law is too rigid to be reasonable. Secondly, accounting records cannot be regards as trade secrets from a legal perspective. Accounting records are corporations’ privacy to the public, but they should be fully known by the corporation’s shareholders, who are owners of the corporation. Thirdly, there exist logic mistakes in courts’ decisions and courts’ decisions to refuse shareholders’ right to copy accounting records cannot prevent financial information from being leaked. Lastly, the purpose of Article 33 is to counter major shareholders’ monopoly over information and protect the minor shareholders’ right to know. This purpose reflects the spirit of the Corporation Law. Courts decisions are contrary to the spirit. Finally, this thesis puts forward three suggestions for improvement of systems, which might better protect shareholders’ right to know. The first suggestion is that China should modify the Corporation Law or publish Judicial Interpretation to expressly authorize shareholders to copy accounting records. The second is to permit shareholders whose shares reach a certain proportion from joint stock companies to copy accounting records. The third is to ensure shareholders must perform an obligation to take good care of copied accounting records or other document.