The Regulative Sense Of The Legislative Intent In Company Law

As a private law, there are abundant discretional clauses in the company law. There are few people studying the legislative intent of company law because they think the company law is only a series of contracts and a model text. There are even some scholars assert to abolish the intent clause in company law. However, the legislative intent plays an important role in the law drafting,execution and application process and is like a sole of a certain law. The Company Law of People’s Republic of China had been revised for many times since the year of 1993, so as the intent clause. In these bills of amendments, the revision in the year of 2005 is the most important and has affected profoundly in these years. The revision is not only because the changes of the historical background and the economy, but also because the revolution of the government’s economic policy.This paper holds the opinion that the legal intent of company law includes both the intent clause of the company law and the hidden legislative intent run through the whole legal text.The first chapter introduces the concept of legislative intent, the regulative sense of it and the presentation of intent in law. In our country, one can hardly find any books or paper studying on legislative intent. However, the academic circle still has a common sense that legislative intent run though the overall process of legislative activity, and that the intent hide behind the legal provisions. The regulative sense of legislative intent is not to be an applicable provision, but to make other provision more rational. The legislative intent can be either the objective clause or the intent hide behind the act. The two expressions both supplement each other.The second chapter compares company law with other commercial law and legislative documents to analyze the change of intent clause and the implement in law. According to the objective clause, the company law has both direct intents and indirect intents. The direct intent is to regulate the organization and operation of companies, protect the legitimate rights and interests of companies, shareholders and creditors, and the indirect intent is to maintain the socialist economic order, and to promote the development of the social market economy. As many other acts, there are legislative intents hide behind the provisions of company law. The writer also believes that there are some clauses of which the intent is different with the intent clause because these special clauses has particular aim and is hard to conclude with a simple intent clause. Some of them can not be contained completely by the objective clause. We can only analyze the intent of these particular clauses from legislative documents or through the literary contents. It might be because the company law is a private law and shall not express too much intent on protecting social interests.The third chapter discusses the application of legislative intent in juridical practice and elaborated the functions of legislative intents through analyzing the law text and real cases, which are legal interpretation and loophole-filling. The writer analyses these two functions by studying the provisions of the company law, the judicial interpretations of company law and the Supreme Court instructional cases.