| The history of development of corporation is the process of weakening state coercion as well as strengthening shareholder autonomy. The complicated relationships between self-government in corporation and state compulsory government have always been the mainline of institutional change of corporation, embody the conflicts of the association and the corporate law. I insist the importance of this paper lies in the proposition that we can only obtain the strong and pragmatic conclusions on the basis of concrete cases and rules, in order to merge the fruits of economic analysis into legal studies.Introductory part overview the purpose and significance of choosing this topic, the present situation of the research home and aboard, and the study approach of this paper.Part 2: Introduction. This part is the introduction of this paper. After describing a debate under the ShengHua Inc. case, we can conclude the two themes of this paper as followed. What is the essence of the conflicts of association and corporate law? How to resolve it from the perspective of legal science?Part 3: The Source of the Conflicts of Association and Corporate Law. This part will analyze the source of the conflicts of association and corporate law from three angles. The deep-seated reason lies in the tension of market freedom and state coercion. State will, like the market, make the ineffectiveness, even may surpass the ineffectiveness of the market, so it is hard to set up the landmarks between the legal intervention and self-government by association. The practical reason lies in the game between investors and legislators. The legal reason lies in the uncertainty of corporate law, including complexity of legal texts, ambiguity of rules as well as absence of rules.Part 4: Legislative Resolutions of Conflicts. There are three categories of corporate rules, enabling rules, default rules and compulsory rules. It is needed to define the rules' character from the perspective of tripartite division, so as to resolve the problem. With regard to the criterion of various rules, Mr. Eisenberg brought forward a way of thinking, who proclaimed that in closed corporation, the structural rules and distributional rules should be in the form of enabling rules as well as default rules, supporting by intention of the parties, but the fiduciary rules are needed to be in the form of compulsory rules; when it comes to public corporation, the management should not be entitled to decide the structural rules and the fiduciary rules, nor to change them. On this analysis, this part will carry out over the corporate rules' categories and assignment of them ground on self-government by association, and put forward the direction of defining the optional rules and compulsory rules, and show my own point of view.Part 5: Judicial Resolutions of Conflicts. When it comes to judiciary, it is significant to apply the law accurately first and foremost. Only by scientific interpretive methods, could this purpose be achieved. Literal meaning is the start point of legal interpretation as well as the finish line. When there are several possibilities of interpretation, it needs to seek the subjective meaning contained in the rules. But if they are absence, the judges are obligated to fulfill the loophole in law. In the whole process of legal interpretation and application, the executors' valuation has chances to invade the judgments, because the confirmation of major and minor premises depend on the activeness of judges. At this time, the spirit of self-government could continue to work in the second line. In order to explain the theory, I would like to select some important cases happened recently, organize them into various case types.Part 6: Conclusion. In summary, to settle the problem of conflicts of association and corporate law, it is necessary to be based on the grounds of related corporate rules. On the legislation, it demands to expound the criterion and reasons; on the judiciary, we must follow the civil law tradition, adhering to legal provisions for the judgment. Companies should, in principle, be the fields of self-autonomy by association, and the borders of self-autonomy by association may need state intervention, as a result, it should be in the spirit of self-government by association to guide the formulation of legal texts; in the administration of justice, the spirit of self-government by association should be tamed by the specific elements and the legal effect, or it will soften the Companies Act. |
