A Study On The Autonomy Of The Articles Of Association And Legal Restrictions On The Transfer Of Shares

There are two levels in the restrictions of the articles of association on equity transfer.The first level is whether the restrictions of the articles of association on equity transfer are effective.The second level is the discussion on the transfer of restricted equity.Based on the case study,this paper summarizes the types of restrictions on the articles of association in the current practice,that is,the forms of restrictions on transfer,transfer procedures and the retroactivity of the articles of association.To summarize the thinking of the referee,the boundary and attitude are vague.The frequent occurrence of different judgments in the same case is not only different in the interpretation of the articles of law,but also different in the cognition of various rights and interests.Starting from the legislative purpose of the company law,the article defines the nature of the articles of association and makes it clear that the setting of the articles of association should conform to the legislative purpose of the company law.Starting from the legislative mode of equity restriction,this paper analyzes the dual restriction mode of 71 consent rules and preemptive rights in the company law,and uses the experience of foreign legislation for reference to clarify the scope that the articles of association can restrict the right of consent and preemptive rights.Through theoretical discussion,and then the autonomy and restrictions on the distribution of rights,put forward the use of law and economics review,dichotomy review,purposive review,contract is not free four review path.Using the theory of marginal utility in law and economics,this paper studies the critical point of the maximization of interests,and treats all parties of interests in a neutral way,rather than choosing which party is biased in advance in order to achieve fair results.In the dichotomy,through the discussion of the differences and common points between the limited liability company and the unlisted joint stock limited company,the internal transfer of stock rights and the external transfer,the author summarizes the autonomous space of the two in the issue of setting limits on the articles of association,and through the purposive review to investigate the purpose of the articles of association rather than the establishment mode.At the same time,drawing on the theory of contract,the paper summarizes the extent to which the articles of association can set limits.In the second level of solution,we should make clear the relationship between the transferor and the transferee,thetransferor and the company,the company and the transferee to make interest coordination,and at the same time,we should make clear the level difference of effectiveness,that is,the effectiveness of the contract is not equal to the change of equity.At the same time,we should borrow the methods of the United States,Japan,France and other countries in dealing with equity transfer,and put forward the countermeasures that can be adopted in China for the transfer of restricted equity Sudden solution and relief.In order to maintain the multi-party legal relationship,maintain the legal order and help resolve the disputes while not destroying the autonomy of human cooperation of the company,we should improve the repurchase mechanism,define the start-up time and the start-up subject.