Rules For Determining The Validity Of A Restriction On Transfer Of Equity In A Company’s Articles Of Association

In 2005,the company law was reformed and a new "as otherwise provided" clause was added to the articles of association,which transformed the nature of the company law from a mandatory legal code to an arbitrary legal code and elevated the status of autonomy of the articles,opening up a new situation for the autonomy of the transfer of equity.However,along with the expansion of the company’s autonomy,various disputes over the restriction clauses of the transfer of equity in the articles of association have continued,and there is no shortage of controversy over the validity of the restriction clauses,with the phenomenon of different judgments in the same case.The "may" and "shall" in the first three paragraphs of the Company Law on transfer of equity and the "otherwise provided" in the fourth paragraph form an inherent conflict,and there are also many different doctrines on the validity of equity transfer restriction clauses in academic circles.There are also different doctrines of distinction between the validity of restriction clauses,which has led to a variety of routes for determining validity in judicial decisions,and it is difficult to have precise rules for determining the validity of similar restriction clauses.It is important to establish reasonable rules for determining the validity of restriction clauses and to clarify their application in order to unify the direction of adjudication.There are difficulties in the rules for determining the validity of restrictive clauses.The first difficulty lies in the fact that the controversy over the validity and nature of the statute affects the consistency of the rules.Different doctrines on the validity of statutes and different doctrines on the nature of statutes have an impact on the rules.The second difficulty is that the scope of peremptory norms is unclear and affects the determination of the boundaries of the rules.This is mainly reflected in the lack of clarity in the dichotomy of peremptory norms,the unclear nature of the right to freedom of transfer,and the unclear scope of the statute "except as otherwise provided".The third difficulty lies in the difficulty of matching the doctrine of validity to the needs of the rules of validity.The vague application of the conditional validity theory,the inappropriate denial of the autonomy of the statute by the total invalidity theory,and the lack of refinement of the type distinction theory all indicate that the above theory cannot match the needs of the existing rules.In order to solve the above problems,we propose a double distinction rule for validity determination.The double distinction rule is a double distinction between the norms of company law and the types and norms of statutes,which has the characteristics of compounding and comprehensiveness.The reasonableness of the double distinction rule is the limited freedom of the statute from the perspective of contract,the respect for the mandatory norms of the company law and the protection of the basic rights and interests of shareholders.At the same time,the double distinction rule is a combination of the characteristics of the various doctrines and has developed a different rule for determining the validity of equity transfer restriction clauses than the previous one,which is more advantageous than the existing doctrines.After establishing the rules for determining the validity of equity transfer restriction clauses,it is necessary to use them as the cornerstone to clarify their expression and application.The expression of the double distinction rule should limit the amendment of significant provisions of the articles of association by certain provisions and clarify the nature of the mandatory norms of the company law,in the expression of legislation,judicial interpretation,judicial significance and typical cases in parallel.In addition,it is necessary to improve the issue of adjudication ideas in the judicial determination of the above-mentioned provisions.The different types of statutes and their restrictive clauses should be considered in the determination to achieve a change in judicial attitude of doubt from leniency to balance of interests.The application of the rule in response to the preceding cases should focus on the distinction between the validity of different types of statutes and restrictive clauses,and the balance of interests in the context of individual cases.