A Study On Enaction Of The Provision For Entrenchment Of Corporation Constitution

It is a new problem to establish the provision for entrenchment of association in our country.Based on the purpose of limiting the abuse of capital majority by large shareholders and realizing a high degree of autonomy of the articles of association,the British Company Law of 2006 puts the entrenchment of association into the legal regulation,which is worthy of our country's refer-fence.The provision for entrenchment refers to adding specific clauses(such as anti-acquisition clause,specific shareholder's consent clause,voting adoption ratio clause and etc.)to the initial articles of association or the amendment of articles of association,so as to increase the difficulty of the adoption of this matter.It is an extension of the articles of association in an attempt to protect minority shareholder rights.The United States,Japan,Germany and other countries have also listed the scope of such provisions in the company law.In view of the autonomous nature of the articles of association,the provisions for entrenchment are both qualitative and mandatory,defensive and flexible,which is the fusion of autonomy and other governance.At the present stage,Chinese company law is in a very blank state in this respect,and there is a lack of detailed analysis of the provisions on special resolutions,but only a few types of special resolutions have been stipulated in a simple way.The vertical hierarchy and importance of the resolution are not reflected,and messy legislation is easy to cause"indigestion”in the judicial process.Due to the lack of clear laws and regulations,the provision for entrenchment of association does not have corresponding legislative guidance,and similar articles of association disputes are pending.Combined with the current law and relevant cases,Chinese judicial judgment logic for the provision for entrenchment is different,and the gap between guiding standards and legal basis urgently needs to be improved by legislation and judicial regulation.Considering the domestic practical needs,the scope and object of the establishment of the provision for entrenchment system in Chinese company law should be enlarged,not limited to the amendment of articles of association.In terms of behavior and content regulations,we should also avoid the opportunism of minority shareholders,the defense of the business interests of major shareholders,the reduction of the duty of care of management and the elimination of the inherent rights of shareholders.Facing many problems,Chinese provision for entrenchment of association should follow the laws and regulations,the requirements of company's articles of association.At the legislative level,the provision for entrenchment should gradually change to the legislative pattern of generalization from the enumeration method mode,combining with its development degree.At present,due to the immaturity of the clauses and the lack of the overall protection of the legal environment,provision for entrenchment of our country should first deal with the relationship between theory and practice by enumerating mode,and gradually develop to the general direction after the conditions are mature.In addition,the rules of formulation and modification should also meet the requirements of all the shareholders agreed in principle.At the same time,Considering the individual requirements of internal governance,on the basis of protecting shareholders'rights,we should adjust the proportion of concurrence appropriately,so as to avoid the rigidity of corporate governance brought about by the excessive requirement of concurrence.In terms of the procedure,a special notification system of entrenchment of association should be established.When dealing with other companies,the counterparts can not clearly recognize the role of defensive clauses.It is necessary for companies to abide by the principle of good faith in the form of written explanations so as to avoid damaging the interests of counterparts because of the provision for entrenchment of association.At the judicial level,the judge should combine the business judgment rule,social effect,economic effect and legal effect with judicial accounting appraisal procedure,give a review of the shareholders'committee resolution under the principle of substantive examination as the exception,avoiding excessive judicialization and derogation of the company's autonomy space.The provision for entrenchment of association is a new hot topic in company law theory,and its wide application will have an important influence on company practice and judicial practice.On the basis of establishing the theoretical framework,leading the reasonable application of the provision for entrenchment of association,we can reduce the imbalance of interests and the destruction of the order caused by the conflict of the articles of association,and realize the harmony of equality,efficiency and justice.