Values Research Of Default Rules In Company Law

Eyes on the world, the concept of company autonomy in company legislation has been deepened and become a tread of company legislation. In the reform of corporation law, the permissive rules can be expanded, but the space of mandatory rules has been squeezed. The default rule in the corporation law is an essential channel that the concept of company autonomy works its way in the reform of corporation law, it also plays a typical role in the promotion of the company legislative technique.However, academic papers or monographs which do special studies on the default rules of the corporation law are few. To a certain extent, this situation is restricted by the traditional dichotomous classification which divided rules of corporation law into permissive and mandatory rules. But the threefold division which the foreign scholars, (e.g. Professor Eisenberg Professor Cheffins and so on) maintain further divide permissive rules into default rules and enabling rules. Meanwhile, scholars also express different viewpoints on what ought to be regulated structure of corporation law. In any case, the Method Synergistics which is mixed with all of the rules of corporation law is said to be the most convincing, it can strike a balance among the diverse interests appeals of different interests subjects which corporation law protect. The paper is followed by a basic theory that the rules of corporation law is mixed with mandatory rules, default rules and enabling rules.The reason why the default rules have a place to stand in corporation law is that, first of all, mandatory rules and enabling rules have some deficiencies which have to empower themselves unable to overcome. But the default rules can make up for these deficiencies to a certain extent. Secondly, it is the private character of the corporation law, and the private character of the corporation law is the most typically reflected in company autonomy, and the autonomy of company charter is the best carrier of company autonomy. Therefore, the point that the private character of the corporation law is on is the autonomy of company charter. The theory of company contracts that company is a combination with a series of contracts provide a research shortcut of law basic theory for the autonomy of company charter. The legal attribute that the company charter is an incomplete and open contract decide the space for company charter, at the same time, it provides a theoretical basis for default rules from one aspect. It is also based on this, this paper research on the default rules from the perspective of company charter. Whether the basis for legitimacy of default rules in charter 2 or the empirical study of default rules in charter 4 are concrete manifestations of the perspective for company charter. We should also note that the autonomy of company charter is not endless, it should follow the basic spirit of the law, achieve the maximization of autonomy in the framework of the basic value and rules. Finally, the values that default rules can reduce transaction costs,facilitate efficient information sharing,promote effects of network externality provide arguments for the legitimacy of default rules.In the middle of mandatory rules of enabling rules, the default rules can reconcile the direct confrontation between the two. Its provisions are usually included in the statutory default that default rules are automatic (it also can be described as"presumption") without other appointments of company participants, and other arrangements that company participants can adopt through company charter and so on. We can use assuming transaction method,overturned default method and future-oriented default method to design the statutory default part. The assuming transaction method is the most commonly used in designing the default rules. The other two methods will be possible to use when the assuming transaction method run out. The default rules usually achieve the results on regulating company through the path of presumption. The paths that the company participants exclude the application of the statutory default are entity selections,legal procedures and company charter. There is no doubt that the path of company charter is the most important way to realize other arrangements. The company charter is the breakthrough point for default rules study in this paper.The concept of legislation which keeps pace with the times is the most significant of the New Corporation Law. This law fully reflects the concepts of deregulation and strengthening autonomy, it emphasizes respect for the company autonomy, respect for the application of the company's legitimate rights and reducing the government's intervention. There appears a number of"unless company charter stipulates in other ways"or other similar expressions which is typical of the default language. That the agreements of company participants replace the mandatory provisions fully respect for the wishes of the company participants. This paper will make empirical research on the default rules in three period of incorporation, operation, dissolution of company, it is also based on the legal attribute which professor Eisenberg defined the rules of corporation law as, and it will describe the space of default rules in Corporation Law through company charter, this paper affirms the legislative value of the New Company Law. However, the default rules in the New Company Law is not perfect, in response to this, this paper has made a critical study and put forward new arrangements of Corporation Law which are in line with China's current situation. Meanwhile, in order to cater for the legislation trend of company autonomy, Corporation Law is bound to have more mandatory rules to alleviate to or be replaced by the default rules (as well as enabling rules). For the expansion of default rules, this paper distinguish between single excluded application of default rules and completely excluded application of default rules, so as to increase the proportion which the default rules in the rules of corporation law.