중국 회사법상 회계장부열람권에 관한 연구

Article 33 of China’s “Company Law” stipulates the “Accounting book inspection right” of shareholders. China’s “Company Law” only stipulates the right to inspect the accounting books of shareholders of limited liability companies, but does not clearly stipulate whether shareholders of joint stock limited companies enjoy this right. Such a system design has brought a lot of interpretation confusion to trial practice. At the same time, the “Company Law” does not clearly stipulate the scope of inspection when shareholders of limited liability companies exercise their right to inspect accounting books. In practice, when shareholders request to consult the “accounting documents”, the company refuses to provide the accounting documents on the grounds that the “accounting documents” are different from the “accounting books” and contain more business secrets than the accounting books. Therefore, issues such as how to understand the scope of “accounting books” and whether a restrictive interpretation should be made have become difficult problems in the court’s trial process.Regarding this issue, not only the academic circles have different opinions, but also the courts have given completely opposite interpretations in trial practice. That is, in China, the scope of the inspection object of the right to inspect accounting books has always been the biggest controversy in the process of legislation and judicial application. Therefore, the draft of the “Company Law (Revised Draft)” published on December 24, 2021 includes amendments to the relevant regulations on shareholders’ right to know. The “Company Law (Draft Amendment)” clarifies the right of inspection of accounting books of shareholders of joint stock companies, and the object of inspection includes accounting documents; added the addition of shareholder inspection materials, which can be entrusted to intermediary agencies such as accounting firms and law firms that are obliged to keep confidentiality in accordance with the code of practice. It also stipulates that shareholders and intermediary agencies such as accounting firms and law firms entrusted by them should abide by the protection of state secrets, commercial secrets, personal privacy, and personal information when consulting and copying relevant materials.However, there is still a lot of room for interpretation that, whether the accounting books can be copied; if the accounting documents can be consulted, whether the purpose of consulting the accounting documents is the same as that of consulting the accounting books; whether the company can refuse shareholders to check the specific criteria for judging that shareholders have “improper purposes”, etc. The shareholder’s accounting book inspection right system needs to balance the shareholder’s right to know and the company’s business secrets, which are two opposite rights and interests. It is necessary to protect the shareholder’s right to know, and at the same time protect the company’s business secrets to limit the abuse of rights by shareholders and the infringement of the company’s interests. The abuse of such rights can be realized by setting rights as minority shareholder rights or restricting the scope of objects that can be inspected, and the company has reasonable grounds to believe that the shareholders’ inspection of accounting books and accounting documents has improper purposes and may damage the legitimate interests of the company. The company may refuse to provide methods such as inspection. However, both the company law and the revised draft are too inclined to limit the abuse of shareholders’ rights, but ignore the legislative purpose and effect of stipulating shareholders’ right to know. Therefore, the requirements for exercising rights should be eased,and the judgment standard for the company’s refusal to provide access on the grounds of improper purposes should be strictly applied.