A Study On The Criterion For Determining The Validity Of The Articles Of Limitation Of Shareholders’ Rights In The Articles Of Association

Nowadays,the articles of association play an important role in the regulation of corporate governance.The design of the articles of association is becoming more and more personalized and targeted.The design of the articles of association is often"wandering" on the edge of the law.The effectiveness problems caused by the restrictions of shareholders’ rights in the articles of association often occur.This paper searches and analyzes the cases about the validity of the articles of association restricting the rights of shareholders,and finds that the attitude of confirming the validity of the articles of association restricting the rights of shareholders to know,restricting the transfer of shares and one vote veto in judicial practice is highly representative,showing a decreasing trend from strong to weak,which can effectively discover the limitations of the articles of association in judicial practice The reasons for the different standards of determining the validity of shareholders’ rights clauses.Through the analysis,the main reasons are:different understanding of the nature of the company’s articles of Association;unclear understanding of the mandatory and arbitrary norms in the company law;judicial practice’s neglect of the legislative purpose of the company law leads to excessive interference in the company’s autonomy;the equity standards for the majority of capital decisions and the protection of shareholders’ rights are not unified.The understanding of the nature of the company’s articles of association in the theoretical circle mainly includes the theory of contract,the theory of autonomy,the theory of compromise and the theory of charter.In practice,the understanding of the company’s articles of association is not unified.The theoretical circle and the practical circle cannot reach a fundamental agreement on the nature of the company’s articles of association.No matter how to understand the nature of the company’s articles of association,we should give the company’s articles of association the highest position in the company.If the provisions of the company’s articles of association do not affect the social and economic order and transaction safety outside the company,we should fully respect the expression of will under the company’s autonomy rules,and confirm that the articles of association restricting shareholders’ rights have effect.In view of the unclear understanding of the mandatory and arbitrary norms in the company law,this paper analyzes and identifies the nature of the norms from the perspective of judicial practice to determine the validity of the articles of association.In principle,the mandatory norms are mostly administrative norms,while the prohibitive norms are mostly effective norms.When the nature of norms can not be defined,we should jump out of the logic circle of "chicken or egg first",and comprehensively judge and analyze the nature of norms with the help of other factors such as the legislative purpose of company law.At the same time,we should make clear the legislative purpose of company law,not expand or limit the application and interpretation of norms,judicial intervention in company autonomy should be limited in the legislative purpose of maintaining economic order and promoting economic development.On the issue of the balance between the majority of capital and the rights of shareholders,it is not accurate to use which shareholder’s rights alone as the standard to determine the validity of the articles of association,and it is easy to deviate from the purpose of legislation.As a basic principle of company law,the principle of capital majority decision is made through legal or regulated procedures.As long as the public interests of the state and society are not harmed and the legitimate rights and interests of the third party are not maliciously harmed,the validity of the company’s articles of association should not be easily denied.Combined with the analysis of the examination path of the effectiveness of the articles of association restricting the rights of shareholders,the recognition standard followed in judicial practice should be principled,not too specific and detailed,and give judges appropriate discretion space in judicial practice.This paper puts forward four suggestions on the recognition standard:the articles of association restricting the rights of shareholders shall not damage the interests of the state,society,the third party and violate the public order and good customs.In the case of damaging the interests of the external third party,it is necessary to distinguish whether there are clear provisions in the law to distinguish and recognize We should seek common ground while reserving differences,fully respect the autonomy of the company,and enforce equality.In fact,it is the biggest inequality.We should analyze the issues related to the company’s internal rights,interests,rules,etc.specifically.We should provide a reasonable exit mechanism for dissenting shareholders,such as the shareholders’ opinion that a certain clause of the articles of association causes their own interests to be limited or infringed,or there is a result The company should provide a reasonable exit mechanism and channel for the stakeholders to choose;confirm and protect the right of claim for damages of the shareholders with limited rights,reduce the burden of proof of the shareholders with limited rights,ensure their right of claim for damages,increase the exercise cost of the personnel authorized by the articles of Association,and make the shareholders or the public who are infringed Division can also get the balance from money.State intervention and intervention is an important means to supplement and remedy the mechanism of corporate autonomy and to prevent its failure.But only on the basis of fully respecting the autonomy of the company can the corporate governance maintain the economic order and promote the economic development.