| In the process of enterprise restructuring in China,due to the irregular procedures and content,various legal hidden dangers are often left behind to lead to various subsequent practical disputes,and a common type of dispute situation is that the limited liability company disposes of the equity of the departing employee in the form stipulated in the articles of association,requiring the employee shareholder to withdraw from the shareholder status at the same time when resigning,and the company buys back the equity of the departing shareholder.Specifically,two disputes arise: first,whether the articles of association of a limited liability company stipulate that employee shareholders must "leave and withdraw shares" is invalid due to illegality;The second is whether the articles of association of the limited liability company stipulate that the withdrawal of shares shall be recovered by the company,and whether the provisions on such share repurchase are legal and valid.This article takes the Jiang Xiaoli dispute case as an example to evaluate its two points of dispute: 1.Whether the articles of association of a limited liability company stipulate that "resignation and withdrawal of shares" is legal and valid.2.Whether the articles of association of the limited liability company stipulate whether the share repurchase is legal and valid.The comments on this case are: First,with regard to the "resignation and withdrawal of shares" dispute,the autonomy of the articles of association of a limited liability company stipulated in the Company Law has its boundaries,while the clause of the articles of association of the employee shareholding system seems to have broken through the boundary of the autonomy of the articles of association because it damages the inherent rights of the shares,thus giving rise to a dispute over the validity of the articles of association.According to the evaluation of the academic viewpoint,the content of the clause should be substantively reviewed,and the clause of the "resignation and withdrawal of shares" charter clause in Jiang Xiaoli’s case did violate the rules of equity protection,and it was not the result of Jiang Xiaoli’s intention,which violated the mandatory provisions on validity,that is,it broke through the autonomy boundary of the charter and should be invalid.Second,the main reason for the share repurchase dispute is that the legislative provisions are not clear.In determining the validity of the repurchase clause,the perspective of moderate expansion should be adopted,and the method of legal benefit measurement should be used to determine that Jite Company does not meet the requirements of moderate expansion,does not have the actual needs of equity repurchase,and has no interests that should be protected,so the clause of the equity repurchase charter involved in the case should be deemed invalid.Finally,the article discusses the legal effect criteria for the disposal of the equity of departing employees,arguing that such provisions are valid in principle,but there are exceptions that break the autonomy of the charter,and the effect of the equity repurchase provisions cannot affect the overall validity of the articles of association.At the level of system construction,it is believed that the boundary of the articles of association for the disposal of equity should be confirmed to a certain extent,guiding rules for the employee stock ownership plan of limited liability companies should be formulated,and the rules for equity repurchase of limited liability companies should be clearly set by legislation. |
