The Judicial Plight And Outlet Of "the Other Regulations" Stipulated In The Company Charter

Compared with the Company Law in1993, the current Company Law has many changes,and one of the biggest changes is that the company is endowed with greater autonomy;theexpansion of the company autonomy is carried out by such law provisions as“except the otherregulations stipulated in the company charter”(hereinafter referred to as “the otherregulations” stipulated in the company charter).“The other regulations” stipulated in thecompany charter ruled out some provisions that should be obeyed in the current CompanyLaw.In this way, company can set its own rules in the company charter and makearrangements on corporate affairs under the condition of not in violation of the law,and thenthe party autonomy principle between the parties will be observed.However, companies oftenmeet disputes because of “the other regulations” stipulated in the company charter; theautonomy of the parties can not be extremely expanded,so disputes can not be identified anddealt with fully in accordance with “the other regulations” stipulated in the company charter.The subject of the article is to explore the judicial plights and outlet of “the other regulations”stipulated in the company charter.Except the preface and the epilogue,full-text is divided intofive parts.The first part aims to put forward the problems that we study in this article. Through theanalysis,we found that: the current Company Law meets the demand of era,and gives thecompany greater autonomy by admitting “the other regulations” stipulated in the companycharter.However, due to incomplete theory and imperfect legislation,the court often meets lotsof difficulties when judging the cases coming from “the other regulations” stipulated in thecompany charter.The second part discusses the nature of the company’s articles of association,and thendiscusses the relationship between the Company Law and “the other regulations” stipulated inthe company charter.There are “autonomy” and “contract” about the nature of the company’sarticles of association in theoretical circle. This part thinks the company’s articles ofassociation have the nature of both autonomy and contract. The Company Law admits theexist of “the other regulations” stipulated in the company charter,and makes the contradictionbetween the company law and articles of association of the company fierce on the surface,butmakes them closer actually. How to correctly handle the relationships between them is important for the court when it judges the cases coming from“the other regulations” stipulatedin the company charter.The third part discusses the performance of plights. Based on the analysis of “Zhou Yanv Feng Lu Building Materials CO.LTD”, summing up the following causes of plights:theoretical basis between original articles of association and the amendment articles ofassociation are different,laws cohesion about the original articles of association and theamendment articles of association is incomplete,and the company’s articles of associationwith the Company Law is difficult to coordinate,etc.The fourth part is about the study of the principles that should be obeyed when the courtjudges the cases coming from “the other regulations” stipulated in the company charter.According to the characteristics of the complexity of cases coming from “the otherregulations” stipulated in the company charter, combining with current legislative spirit of thecompany law, the following principles should be followed by the court during judging thosecases: respect the company autonomy, loose and flexible, the pursuit of essential justice,etc.The fifth part involves rules construction for the court’s intervention in the cases comingfrom “the other regulations” stipulated in the company charter.This part tells that: in order toprevent the disputes coming from “the other regulations” stipulated in the company charter,opinions about providing guidance to the articles of association of the company by therelevant departments could be considered;and in order to accurately identify and deal with thecases coming from “the other regulations” stipulated in the company charter,the followingrules could be considered: set up the case guidance system, introduce business judgment rule.