Research On Legal Issues Of Limited Liability Company's Articles Of Association Restricting Equity Transfer

The paragraph 4 of Article 71 of “Company Law” gives the articles of association the right to make personalized arrangements for equity transfer,but it does not limit the scope of this autonomous right.With the expansion of company autonomy space and the relaxation of capital controls,the company's autonomy arrangements and articles of association have become more and more complicated.Among them,a large number of cases of abuse of rights to unreasonably restrict the transfer of equity have existed.This article uses empirical methods to find out the hidden legislative shortcomings through the examination of legal practice.Finally,it provides reference opinions for the improvement of the rules of our country's limited liability company's constitution restricting the transfer of equity.The structure of this article is four chapters.The first chapter is an investigation of the status quo of judicial practice,which is divided into two sections.The first section focuses on empirical analysis.Through the overall study of selected sample cases,the data on the number distribution,geographical distribution,dispute types,trial situations,and the attitudes of various courts to the autonomy clauses of the articles of association have been sorted out,to keep up with the latest judicial developments.The second section mainly summarizes the focus of disputes from the sample cases,and explore the court's different positions on disputes and the corresponding handling methods.In order to have a more comprehensive understanding of the current status of judicial practice,the third section sorts out the guidance issued by the higher people's courts in various regions.The second chapter is the analysis of practical dilemma and cause.There are two sections.The first section focuses on summarizing and analyzing the shortcomings of the court in handling disputes,that is,the excessive tolerance of the restrictive clauses of the equity transfer charter,the lack of proper reason for the classification of the effectiveness of the charter,and the confusion between the equity change and the effectiveness of the equity transfer agreement.The second section is to reflect on the reasons for the aforementioned problems,that is,the scope of the company's articles of association can be “otherwise stipulated” is too broad,the legal consequences of violating the restrictive provisions of the charter are not clear.The third chapter is a comparative analysis of relevant legislation.This chapter is divided into three sections.We will respectively examine the contents of the rules restricting equity transfer in the articles of association of the extraterritorial countries.Through the inspection of legislation and practical experience outside the territory,it points out the excellent experience that China can absorb and learn from.For example,the United States' reasonableness review standards,Germany's strict equity transfer procedures and formal requirements,and Japan's designated transfer system.It is expected to provide extraterritorial resources for the improvement of the rules of our country's limited liability company's constitution that restrict the transfer of equity.The fourth chapter is the improvement of the relevant rules.This chapter is divided into two sections.The first section is to improve the existing restrictions on equity transfer by means of amendments,such as introducing the United States' reasonableness review standards,reforming the existing majority rule and setting up alternative remedies.The second section is to use the judicial interpretation system to clarify the meaning of the relevant company law provisions,and to deepen the understanding of the legislative purpose,normative function as stipulated in Article 71 of the “Company Law”,the connotation of the reasonableness standard and the responsibilities of the corresponding parties in different situations.