On Legality Of Limitation To Equity Transfer In Company's Articles Of Association

Though the seventy-first clause and fourth paragraph of our company law stipulate that the company's articles of association of limited liability companies can make "separate provisions" for the transfer of shares,it will reserve larger space for the autonomy of shareholders.However,in practice,some shareholders may use or even abuse their dominant power in the formulation of the articles of association,or by modifying or repeating part of the articles of the articles of association,so as to restrict the transfer of shares or get rid of the restrictions of the initial regulations on equity transfer.Our practitioners and scholars on the prohibition of the articles of association of the company equity transfer,the transfer restrictions,such as whether the provisions of compulsory transfer has disputed legitimacy,identical lawsuits with distinct judgment" situations have occurred.It is necessary to study the law of limited liability company to restrict the legitimacy of equity transfer in our country.In addition to the introduction and conclusion,the text includes the following four parts.The first part is the game of the autonomy of the company's constitution and the freedom of the transfer of equity.First,it expounds the autonomy of the articles of association of limited liability companies.Combined with the provisions of the articles of association on the transfer of shares in the company law,we can see that the limited company's articles of association limit the general effectiveness of the transfer of shares,and analyze the relief ways of the transfer of invalid shares.Secondly,it affirms the transferability of equity,and combines the seventy-first articles of the company law to know the relevant provisions on the free transfer of equity under the current legal system of China.Finally,some restrictions on equity transfer is actually needed to supplement the "company law",to solve the conflict between the autonomy of company charter and free stock transfer,the key lies in combining with the current situation of the company,in accordance with the "company law" of mandatory provisions,allowing limited liability company equity transfer restrictions in the articles of association to supplement the "company law" loophole on the restriction of regulations of equity transfer.The second part is the rationality of restricting the transfer of equity in the limited liability company.On the one hand,through the analysis of the limited liability company,the company demonstrated the rationality of the equity transfer restriction of regulations,to prevent the small shareholders into the company shareholders through all or part to transfer itsequity holdings to withdraw from the company,and the shareholding structure of the company to maintain stability;on the other hand,through the comparison of the limited liability company with the Limited by Share Ltd's equity transfer free,the Limited by Share Ltd either internal or external transfer of equity are relatively free.Once Limited by Share Ltd has investment risk,shareholders can transfer shares quickly,while shareholders of limited liability companies do not rely on equity transfer to control investment risk.Therefore,the company's charter can restrict their transfer of shares.The third part is the main situation and legitimacy of the statute to restrict the transfer of equity.The limited liability company legal limit charter equity transfer due to specific situations,including five circumstances:(one)prohibit the transfer of shares,that is,in addition to the company's initial articles on the equity transfer to prohibition,not by amending the articles of association of the equity transfer made provisions shareholders principle;(two)limit the transfer of equity,the articles of association of the equity transfer of internal and external transfer can restrict the transfer of shares of the statute can limit restrictions strictly in the "company law",but not wider than or less than the statutory conditions;(three)limit the right of preemption of shareholders,constitution without depriving or depriving shareholders of priority buy right,can make some restrictions on the transfer of foreign equity shareholders;(four)compulsory equity transfer,for example,the articles of association can Provisions of leaving shareholders forced the transfer of ownership;in addition,the initial articles of association of the equity transfer agreement under different conditions,determine the validity of the transfer of equity are not the same as the standard;(five)reasonable restrictions,in order to achieve the unification of legality and rationality,the articles of Association of the share transfer restrictions should be carried out in certain specific circumstances,and not arbitrarily limit.The key point of this paper is to combine the autonomy mechanism of the articles of association and guide the two sides to fully exercise their autonomy rights,and abide by the provisions of the company law,so that the transfer of shares is legitimate and reasonable.The fourth part is the legality of revising the limitation of the transfer of the stock rights and regulations.Although China's "company law" provisions of the articles of association of the equity transfer provisions,from its provisions,however,if the initial regulations restrict the transfer of shares,and major shareholders by shareholders will be held to amend the company's articles of association,the equity transfer behavior to conform to the articles ofassociation rules,at this time,the equity transfer is legitimate it is worth analyzing.The author believes that the change for the revision of the articles of Association for the equity transfer restrictions,distinguished specific circumstances need to treat them separately: one is to vote on the amendment of articles relating to the transfer of shares the company,due to their own interests,shareholders should fulfill the right to vote under special circumstances prohibited obligation,by other shareholders voting rights held by more than 2/3 the party is legitimate;the two is the distinction between the different shareholders to modify the behavior effect,if the representative of the majority of the voting rights of the shareholders to vote,to reach 2/3 or more of the voting rights can modify the articles of association of the company;but if the other shareholders against the revised part is not binding on the dissenting shareholders,the applicable provisions of the articles of association of the initial still.