| As the primary economic organization, company and company law are becoming moreand more important in modern society. However the debate over the nature of the companylaw is still in the state of controversy in mandatory or casual mode, which consequentlyembodies the different situation of company participators in every country's company lawwith respect to the proportion between the optional norm and mandatory norm. How todispose and collocate the different norm of regulations in company law becomes the key tothe legislation, implementation and justice of company law, even the decisive factor ofimproving national economic competitive and economic development. Hence this paper takesthe mandatory norm as the main subject to offer a basic research material to develop Chinesecompany law, and provide some certain of valuable suggestions and advice, whether the valueis positive or not.With respect to the various issues in the study of mandatory norm, this paper, startingfrom the point of basic legal, articles and concrete problems in practice, utilizing themethodologies of economic, historical, systemic, comparative and descriptive analysis and thetheories of nation intervention and enterprise contracts in economics, points out thecorresponding amendment, and developing measures, on the basic of realistic shortcomingsand dilemmas in company mandatory norm and juristic practice.Apart from the preface, this paper includes five chapters:Chapter one is the General Description on Legal Norm, which is precedent descriptionand elementary illumination for company mandatory norm. What is Law and Legal Norm isalways the controversial disputes among philosophizers, jurist experts, socialists andeconomic experts, and still comes to no unanimous understanding and leading views. In orderto expend and deepen this research, the basic definition on law and legal norm becomesessential, even which it is not so accurate or deficient, including but not limited to thedefinition, characterizations and consisting factors. Finally this chapter takes theclassifications on company mandatory norm as the end which definitely leads to the startpoint of this research. For the reason of various criteria, legal norm could be classified todifferent kinds, in which mandatory norm and optional norm are of extremely importance intraditional civil law. In view to the homogeneity with civil law, the classification of companyrules shall be paid more attention to the characterizations of company law itself, as well astraditional theories of traditional civil law. Hence, this chapter classifies company rules into optional norm and mandatory norm, in which optional one includes application norm bypermit and application norm by assumption; mandatory one includes effective mandatorynorm and abolishing mandatory norm, even could be extended to procedural mandatory normand substantial mandatory norm.The second chapter is The Legitimation and Limitation of The Existence of TheMandatory Norm In Company Law. This chapter begins with the introduction and evaluationof the company contractual theory. The root of the rationality of the mandatory norm is fromthe legitimation of their existence. First it is necessary to introduce some theories of theopponents for the comparison purpose. The company contractual theories believe that thecompany is "a nexus of contracts", and the company law is composed of optional norm.However these theories neglect the problems that in some circumstances, there is no flee ofthe contract, some special person need some special protection and the loss of efficiencycaused by the uncertainty of the contracts. Meanwhile these theories can not fulfill the objectsof public interest protection, justices and trade safety. On the other hand, the companymandatory norm is born with defects due to the causes such as, the low efficiency and highcosts of the state intervention, the deflection of the public interests aim and the "rent-seeking"phenomena by the "interested groups". So the conclusion of this paper is that the optionalnorms should dominate in the company law and mandatory ones should be subordinate. Thecompany law a mixture of the optional and mandatory norm.The third chapter is The Condition of The Existence of The Mandatory Norm In TheCompany Law. It aims at discussing the scope and state of the mandatory norm in thecompany law in the following contents. Some norms should be mandatory in terms of thecompany form, certain procedures, the division of the power, and the loyal obligation of thecontrolling shareholders, the directors and top managers. But this is a rough definition, for thedevelopment and change of the social economy and political situations. The point of studyingthe mandatory norm scope is not to a concrete plot, but study the factors influence their scopeand find out the principle and ways to fix their scope. The second and third parts of thischapter talk about the scope, states and influential factors form the theory of the company lawand the company's outside circumstance. The influential factors conclude the company naturetheory, the company organization structure theory, the company social responsibility theory,the purpose of the company law, the market mechanism for the company law, theimplementary mechanism of the company law, and the culture and history background for theoperation of the company law. To make the argument more reasonable, the analysis of thefacts is necessary. Therefore this chapter cites the fact of the gradually expansion of the power of the company to prove the transfer of the mandatory norm to the optional ones, and the factsof the development of the exposure system of the on-listed company to prove the transfer ofthe optional ones to the mandatory ones, and the facts of the existence of the companyre-investment system in many countries'company laws to prove the coexistence of themandatory and optional norm.The fourth chapter is The Collocation and Expression of The Mandatory Norm In TheCompany Laws, which carries the research from the respect of the legislation. Since thecompany law is composed of most optional norms and few mandatory ones, the collocation ofthe norm of the company law should follow the criterions as follows: when the companyparticipants have the ability to fully negotiate and reach the contractual agreement of thecompany affairs without any negative effects, these norm should be optional, otherwise, itshould be mandatory; when the procedural mandatory norm can overcome the barriers offully negotiation and negative effects of the contractual agreements, these norms should notbe set as substantial ones. If we using these criterions to review China existing Company Law,you may find a lot of problems, and the reasons of these problems include the false position ofthe legislation guiding thoughts and belief, the effects form the interested group, paying toomuch focus on the invention but ignoring the legislation way ect.. Therefore, from thestandpoint of legislation technology and mode, we should adapt an opening legislation way,choose the precision and illegibility, the criterion and unification, the concision and fme of thewords, pay attention on the maneuverability of the regulations in practice, and revise thecompany law to adapt the demand of changing economy development. Form the point of lawtransplantation, we should fully recognize the necessity of transplantation, and consider thelocal character, localize the company law to improve the development and prosperity ofeconomy.The fifth chapter is The Identification of The Mandatory Norm of The Company Lawand Judicial Judgment. It aims at resolving the problems in the judicial practice. How todefine the nature of certain norm is always a big problem in law theory and judicial practice.To judge the mandatory norm requires the comprehensive analyses and research on the legallanguage, regulation mode, value tropism and other factors. Only doing that can come out theaccurate and convictive conclusion. Stylization of the norms plays a basic role in identifyingthe mandatory norm. Although it may have some limitations, it provides a convenient way forthe judicial practice, by setting a preliminary and rough standard of judging the nature of thenorms to provide the basis and premise for further accurate judgment. The language judgmentis intuitionistic and only can act as a reference. So the legal language can only be an assistant in the regulation nature judgment. Because of the insufficiency of the language judgment andinaccuracy of the regulation stylization, we need to introduce the new criterion and method,which is the value judgment in the single case. Identification is only the basis of the decision.The key is the determination of the force to the behaviors breaking the mandatory norm.According to the regulations and related theories of the company law, if the behavior breaksthe mandatory norm in company law, it might be absolute void, void but afterwards, partlyvoid, cancelled, or valid. In the course of the mandatory norm identification and treatment ofviolating behaviors, the weigh of value is basic, which gives the judges large discretion. Thereare some ways to supervise and control the discretion. This paper analyses the question fromthe point of legal reasoning, which demands the judges to justify their decisions. Therefore,on the one hand, it can urge the judges to improve their professional quality and judgmentstandard, and compel them to make related decisions in the scope of legal order; on the otherhand, the justification of the decisions is the surface of the jurisdiction operation process, andthe explanation to the justice of the decision, which provides the premise and foundation forthe judicial exterior supervision.Generally speaking, this paper does not have a definite core, instead it follows the clue of"the mandatory norm of the company laws", and then discusses the value of their existence,reviews their existence situation, and brings forward the resolution for the shortcoming in thecompany law and judicial practice which is indeed the core of this paper—resolving thefactual conflicts and breaking the factual difficulties.However, new and bigger dilemma occurs……...
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