| With the further liberalization of the legal restrictions on the registered capital of Chinese companies,the company’s share and status in the market economy has become increasingly prominent.The equity repurchase clause in the charter of a limited liability company means that when the conditions are fulfilled in the company’s articles of association,the shareholders will lose their identities as shareholders,and their shares would be repurchased by the company.The reason why the companies always have such a clause is that the limited liability company normally tends to be an efficient entity,in which disadvantage factors created by the shareholders should be eliminated,and companies usually want to avoid the influence of the new shareholders,which affects the trust between the former shareholders,so that the company’s operations can continue.Although the provisions of this article in our company law are still in a state of deficiencies,in practice,the effectiveness of this clause is affirmed in most cases.The No.96 guidance case of the Supreme People’s Court resolved to some extent the lack of legislation on the effectiveness of the equity repurchase clause in the charter of China’s limited liability company,but the Supreme Court’s judgment on the effectiveness of the equity repurchase clause of the limited liability company’s articles of association is limited to the “original articles”.The validity of the equity repurchase clause or the modified equity repurchase clause in the non-original articles was not stipulated,and in the future practice of the company law,the corresponding case will inevitably be encountered.Therefore,whether such clauses are effective and how effective they would be should be explored in depth.This article is divided into the following five parts:The first part of this paper briefly describes the guidance case No.96 of the Supreme Court related to this article.By analyzing the case,it summarizes the theoretical basis and value orientation of the Supreme Court in dealing with the case,and the non-primitive compulsory return of the charter of the limited liability company derived from it.In the end it analyzes the validity of the terms of purchase.The second part of this paper continue with the analysis of the first part by detailing the absence of the law on the effectiveness of the share repurchase clause in the articles of the limited liability company and discussing the solutions court should apply in the light of the relevant provisions of the existing "Company Law" to judge the validity of the relevant articles in judicial practice when the Supreme Court No.96 guidance case only serves for the validity of the equity repurchase clause in the original charter.The third part of this paper expounds the possible legal basis of the non-original share repurchase clause in the charter of the limited liability company.This part discusses the liability of the legal person contract,the autonomy of the articles and the humanity of the limited liability company.The legal branch behind the non-original share repurchase clause.The fourth part of this article is an analysis of the relevant judicial practice in major countries outside the region,and provides reference for the practice of corporate law in China through the judicial experience of Japan,Germany,Britain and the United States.The fifth part discusses the distinction between the effects of non-original mandatory repurchase clauses in the articles of association of limited liability companies.This part is also the core part of this article.This part will be discussed separately from the repurchase terms of different nature and the repurchase terms for different entities.The former analyzes the validity of the non-original mandatory repurchase clause from the content of the clause,and the latter expresses the validity of the clause in detail from the perspective of voting procedures and applicable subjectsThe last part of this article is a summary of this article. |
PDF Full Text Request