Analysis On The Effectiveness Of The Articles Of Association About Limitation On The Equity Transfer In The Limited Liability Company

The fourth provision of the seventy-one paragraph of the company law specifies that unless otherwise provided in the articles of association of the company,it shall prevail,and the provision entitles the articles of association to place restrictions on the equity transfer.But because of the different theoretical understandings on the “otherwise specified”,judicial practice does not form a unified judgment thinking on the effectiveness of the articles of association about limitation on the equity transfer,resulting common case of diverse judgments.This increases the uncertainty of the application of the provision and the legislative purpose does not achieved.This paper leads to the content of the study by a case in which the courts hold different opinions on the effectiveness of the articles of association about limitation on the equity transfer in the limited liability company,from several angles,such as features of human resource integrity and capital integrity of the limited liability company,the balance between autonomy of articles of association and rule of law,the inherent nature of equity as property right and freedom transfer of equity,conflicts among legal regulations in the limitation on the equity transfer by the articles of association,distinct legal principle of the original articles of association and the amendment of the articles of association,and concludes a general method to judge the effectiveness of the articles of association about limitation on the equity transfer in the limited liability company.The paper has five chapters.The content of the first chapter is to lead to the issue to be analyzed that the effectiveness of the articles of association about limitation on the equity transfer in the limited liability company by introducing the different judicial opinions of courts on the same matter by an appeal case of company earnings distribution between Nanjing Planning and Design Institution Co.,Ltd and Shi Cuizhen.The content of the second chapter is to analyze the free transfer of equity.The content of the third chapter is to explain the rationality of the articles of association about limitation on the equity transfer in the limited liability company by analyzing the features of human resource integrity and capital integrity of the limited liability company,autonomy of articles of association and rule of law of the company.The content of the fourth chapter is to illustrate that the content of the articles of association about limitation on the equity transfer in the limited liability company includes procedural and non-elementary substantive limitation and to emphasize the acceptability and predictability of law.The content of the fifth chapter is to analyze the the effectiveness of the articles of association about limitation on the equity transfer in the limited liability company.Finally summarize the whole paper.