Research On The Effectiveness Of The Amendment To The Articles Of Association To Restrict The Transfer Of Shares

The vigorous vitality of the company comes from the autonomy of the company and shareholders.As a legal document that fully embodies the autonomy of the company and shareholders,the company's articles of association not only standardizes the organization and activities of the company,but also is an important source of shareholders' rights.But at the same time,it should be noted that China's "company law" does not pay attention to the difference between the initial articles of association and the amendment of articles of association,as well as the difference in the autonomy limit of the company.Therefore,in practice,there are many restrictions on shareholders' private rights by means of amendment of articles of association,among which the most representative one is the restriction on shareholders' rights of equity transfer.Different scholars and court decisions have disputes over the legal effect of the amendment of articles of association to limit the transfer of shares.Through the analysis and summary of the relevant issues,this paper hopes to provide a thinking direction for solving the above related disputes in practice.This paper analyzes the effectiveness of the amendment of articles of association to restrict the transfer of shares through four chapters.The first chapter mainly analyzes the reasons for the dispute over the restriction of the effectiveness of the amendment of articles of association on the transfer of shares--that is,the existing laws are unclear on the boundary of the autonomous space of the initial articles of association and the restriction clauses of the amendment of articles of association.The second chapter is to clarify the legal basis of the effectiveness analysis of the amendment of articles of association and the agreement on restricting the transfer of shares.This chapter is divided into three sections.First,from the perspective of the nature of equity and the principle of free transfer of equity,the first section analyzes that the right to transfer of equity can be restricted by the way of group autonomy.The second section,from the special nature of the amendment of articles of association,analyzes the significance of distinguishing the amendment of articles of association from the original articles of association--the degree of autonomy of the two is different,and the understanding of the application of the principle of "capital majority";The third section,based on the legal basis of the equity transfer and the amendment of articles of association mentioned above,discusses the three basic principles that should be observed in the effectiveness evaluation,that is,the principle of not violating the vested interests of shareholders,the principle of good faith for the overall interests of the company,and the principle of not adding new obligations without the consent of shareholders.Through basic analysis of the above two chapters,the amendments to the articles of association of the third chapter to the reality of equity transfer,summarized the effect elements,this chapter points discussed four sections: the first section analyzes the we should departure from the behavior nature,determine the basis of analysis of the effect,and put forward amendments to the articles of association of the set of decision behavior belongs to expressed as a common means of special civil juristic ACTS,it has both general civil juristic act system foundation,also has the particularity.By defining the legal nature of the act of the resolution,the author puts forward the basic effective requirements of civil legal act that should be followed when making the amendment of articles of association to limit stock rights.The second section from the actual judgment,from the typical cases to summarize the effectiveness of the amendment of articles of association;Section three summarizes the formal requirements of effectiveness review,which means that the expression of each shareholder's intention should be true and indispensable,and the procedural requirements of resolution behavior should be satisfied.The fourth section summarizes the essential requirements of effectiveness review,that is,the provisions restricting the transfer of equity shall not violate the mandatory provisions of the law,and the restrictions shall conform to the standards of rationality.The fourth chapter in the third chapter on the basis of the effectiveness of the elements of induction,specific analysis of different types of articles of association to limit the effectiveness of equity transfer.This chapter is divided into three sections: the first section is the analysis of the effectiveness of the amendment of articles of association based on the demand of equity incentive;Section two is the analysis of the effectiveness of the procedure of restricted stock transfer;Section three analyzes the legal effect of restricting the entity content of equity transfer.