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【Abstract】 The Company Law of 1993 is important in protecting the interests of both companies and shareholders. But on stock right, it always arouses heated debate among scholars. Before the promulgation of New Company Law of 2006, varieties of theories of this issue have been formed. Through analyzing and refuting those theories, I try to clear the ambiguous definition by explaining the essence of right and comparing related right, so as to reach the conclusion that the stock right is only the changeable form of the ownership of shareholders.
【Key words】 ownership right, stock right, Judicial person property
1 Theories on stock right and analysis
1.1 On theory of ownership right。A lot of scholars support this kind of theory, it may approximately divide into three subordinate ones, “double ownership”, “ownership in common”
and “virtual ownership”.
With such understanding of stock right combined traditional principle in property law, we may make the inference that “double ownership” violates the principle of “one thing, one right” ; “ownership in common” mistakes Judicial person for common relationship; “Virtual Ownership” presents the same contents with “double ownership” except for the abstract definition to avoid the conflict with the traditional principle.
1.2 On theory of commune member right。This is the dominant ideology in the continental law system countries. The right of commune member concentrates on the identity of members in the organization, but with the development of company, stock right is not based on the identity of shareholders, even generating at the same time with the shareholder. As for the statement defying stock right as a comprehensive right of commune member, it is so ambiguous that hard to understand. Moreover, as for the approved form of one-person company, then the right of one shareholder is still can be recognized as right of commune member?
1.3 On theory of creditor's right。This theory was held that subscription shares of shareholders are aimed to obtain the distribution of interests. But it only expresses the tendency that company is trying to get rid of the control of shareholders, but overlooks the balance and compromise of interests between shareholders who control the company through the resolution of general meeting. Company Laws of many countries indicate that shareholders do have controlling right which can't be denied just because of the fewer exertions. In addition, according to the theory, how to differentiate the legal relationship between buying the shares and common people buying the company bonds?
2 Essential contents of stock right
Traditional restraint upon four elements of ownership: occupancy, use, benefit and disposition. It states that these four functions can be separated from ownership; meanwhile the owner doesn't lose the ownership. The right of control is the core of ownership, once the restriction of his real right is eliminated, the ownership can be reverse to complete situation, which is known as the flexibility of ownership. But these statements really need to be reconsidered. First, from the legal provisions of most countries and the development of societies, to defy the ownership mainly focuses on the way of domination by people, and the forms of ownership is increasingly developing more rather than confining to those four functions. Besides, there exist the logical defects of the four functions separation. The so called separation only happened when there is whole and part relationship, but the relationship between functions and ownership is that of form and content. Consequently, to restrict the ownership to the aggregate of four rights or functions is not scientific because the forms to feature the ownership are infinite. It makes sense to the essential of the stock right. Shareholders have the ownership of the properties, but when the contributions were made to the shareholdings, the existing forms of property ownership changed to other forms, that is, from the traditional occupancy, use, benefit and disposition rights to self-benefit right and common-benefit right which fully express the ownership.
3 The relationship between the stock right and the Judicial person property
From the origin of Judicial person, it's aimed to create a channel of capital operation. Scientifically speaking, law only constructs the right rather than the object of property, which means it identifies the property relationship of subjects. Take the joint stock company for example, to say it is Judicial person doesn't mean the shares owned by the company but indicates that the company utilizes this form to manage the capitals. All in all, the form of company is the way to operate the capitals. If we acknowledge that the Judicial person has the property ownership, it equals with admit the Judicial person dominates itself. So the Judicial person's Ownership of the company is a comprehensive definition, including a vast range of property, such as currency, practicality, industrial property right, non patent technology and access of ground etc. So the stock right and Judicial person's ownership are two different definitions from different aspects.
In conclusion, stock right is the way to express the shareholders'ownership after contribution of capitals as well as the identity of shareholders. We should not deny the shareholder's ownership because of the transfer of properties.
Reference
[1] Renaud, Das Recht der Aktiengesellschaftern,2,Auf,1875.
[2] Foss V. Harbottle. 2 Hare461 .PHD/Maindoc/CH9.CHI/Cwin. 1843, .
[3] Jiang Ping, Kong Xiangjun,, , 7, 1994.
收稿日期：2008-4-21
【Key words】 ownership right, stock right, Judicial person property
1 Theories on stock right and analysis
1.1 On theory of ownership right。A lot of scholars support this kind of theory, it may approximately divide into three subordinate ones, “double ownership”, “ownership in common”
and “virtual ownership”.
With such understanding of stock right combined traditional principle in property law, we may make the inference that “double ownership” violates the principle of “one thing, one right” ; “ownership in common” mistakes Judicial person for common relationship; “Virtual Ownership” presents the same contents with “double ownership” except for the abstract definition to avoid the conflict with the traditional principle.
1.2 On theory of commune member right。This is the dominant ideology in the continental law system countries. The right of commune member concentrates on the identity of members in the organization, but with the development of company, stock right is not based on the identity of shareholders, even generating at the same time with the shareholder. As for the statement defying stock right as a comprehensive right of commune member, it is so ambiguous that hard to understand. Moreover, as for the approved form of one-person company, then the right of one shareholder is still can be recognized as right of commune member?
1.3 On theory of creditor's right。This theory was held that subscription shares of shareholders are aimed to obtain the distribution of interests. But it only expresses the tendency that company is trying to get rid of the control of shareholders, but overlooks the balance and compromise of interests between shareholders who control the company through the resolution of general meeting. Company Laws of many countries indicate that shareholders do have controlling right which can't be denied just because of the fewer exertions. In addition, according to the theory, how to differentiate the legal relationship between buying the shares and common people buying the company bonds?
2 Essential contents of stock right
Traditional restraint upon four elements of ownership: occupancy, use, benefit and disposition. It states that these four functions can be separated from ownership; meanwhile the owner doesn't lose the ownership. The right of control is the core of ownership, once the restriction of his real right is eliminated, the ownership can be reverse to complete situation, which is known as the flexibility of ownership. But these statements really need to be reconsidered. First, from the legal provisions of most countries and the development of societies, to defy the ownership mainly focuses on the way of domination by people, and the forms of ownership is increasingly developing more rather than confining to those four functions. Besides, there exist the logical defects of the four functions separation. The so called separation only happened when there is whole and part relationship, but the relationship between functions and ownership is that of form and content. Consequently, to restrict the ownership to the aggregate of four rights or functions is not scientific because the forms to feature the ownership are infinite. It makes sense to the essential of the stock right. Shareholders have the ownership of the properties, but when the contributions were made to the shareholdings, the existing forms of property ownership changed to other forms, that is, from the traditional occupancy, use, benefit and disposition rights to self-benefit right and common-benefit right which fully express the ownership.
3 The relationship between the stock right and the Judicial person property
From the origin of Judicial person, it's aimed to create a channel of capital operation. Scientifically speaking, law only constructs the right rather than the object of property, which means it identifies the property relationship of subjects. Take the joint stock company for example, to say it is Judicial person doesn't mean the shares owned by the company but indicates that the company utilizes this form to manage the capitals. All in all, the form of company is the way to operate the capitals. If we acknowledge that the Judicial person has the property ownership, it equals with admit the Judicial person dominates itself. So the Judicial person's Ownership of the company is a comprehensive definition, including a vast range of property, such as currency, practicality, industrial property right, non patent technology and access of ground etc. So the stock right and Judicial person's ownership are two different definitions from different aspects.
In conclusion, stock right is the way to express the shareholders'ownership after contribution of capitals as well as the identity of shareholders. We should not deny the shareholder's ownership because of the transfer of properties.
Reference
[1] Renaud, Das Recht der Aktiengesellschaftern,2,Auf,1875.
[2] Foss V. Harbottle. 2 Hare461 .PHD/Maindoc/CH9.CHI/Cwin. 1843, .
[3] Jiang Ping, Kong Xiangjun,
收稿日期：2008-4-21