Study On The Judicial Confirmation Of Defects In The Effectiveness Of Articles Of Association

Cutting The development of the Company self-government concepts and broaden of the ways of company autonomy,make the space of the company constitutional autonomy broader and broader.However,the existence of the mandatory norms in the company laws also puts the articles of association under the dual states of freedom and restriction.The difference between dealing with compulsion and autonomy occur many cases involving the effectiveness of the articles of association in juridical practice.The quality of the articles of association exists in disputes;the confirmation of effectiveness of the articles of association lacks of clear standards;the legal consequences of defects of effectiveness of the articles of association haven't got uniform regulation and so on,which make it difficult to judge the cases about it.It also occur “same case but different trial” or “same case and same trial but different laws”.However,the articles of association will not only affect the company,shareholders' benefits,but also the third party's benefits.Therefore the judicial confirmation refers to the defects of the effectiveness of the articles of association should be studied and solved.This paper consists of four parts.The main contents of each part are as follows:In the first part,the author takes the 96 guiding case of Supreme People's Court as an example,summarizing the dilemma of the defects of the effectiveness of the articles of association through the analysis of main points of court judgment.The second part,on the one hand,the author reflects and think critically on the three theories about the articles of association,then attests the resolution attribute of the articles of the association.On the other hand,this paper defines and confirms the concept of the defects of the effectiveness of the articles of association.The third part,firstly the author discusses the property and legitimacy of judicature involving in the legal dispute;secondly,the author analyzes the validity confirmation in defects of the articles and procedures of association;lastly,the author researches on the legal consequences of the articles of association.At the fourth part,the author proposes three suggestions to perfect the judicial confirmation about the defects of the effectiveness of the articles of the association.Firstly,the six censorship rules of the defects of the articles of the association's judicial confirmation should be clear and definite.Secondly,the specific judicial procedures to confirm the effectiveness of the articles of the association should be clear and definite.Thirdly,ascertain the legal consequences caused by the defects of the articles of the association,including its own effectiveness consequences and retrospective effects of the defects in effectiveness.