Study On The Legal Issues Of Entrenched Provisions In The Articles Of Association

entrenched provisions,as a tool to achieve shareholder autonomy,have positive value in broadening effective restrictions on shareholder shareholders’ rights,providing greater flexibility to protect shareholder interests,balancing the interests of shareholders,the company and external stakeholders,and guiding the stable,healthy and sustainable development of the firm.However,there is insufficient theoretical research on defensive clauses in academic circles,and at the same time,different people’s courts often have different judgments on the validity of defensive clauses of the same type.At the level of independent law,Article 43(2)of the Company Law does not provide a reasonable response to the validity of various types of entrenched provisions in the articles of incorporation,For example,if the "unanimous agreement of all stockholders clause" stipulated in the company’s articles of association has any natural validity;Does the "one vote veto power" under the specific shareholder consent clause mechanism exceed the principle of equal rights for all shares;Whether the application conditions of the same defensive clause are completely the same for different types of companies,and so on.Therefore,it is necessary to explore the legal issues of defensive clauses:this thesis makes clear that the purpose of the defence clause in the articles of incorporation is primarily to limit the abuse of the majority of capital by controlling shareholders in order to protect the interests of particular shareholders.It can be seen that the defense object of defensive clauses generally refers to the shareholders controlled by the company;The main function of defensive clauses is to set special voting rules for special resolutions of shareholders’ meetings.However,the subjects that establish defensive clauses and the subjects that can use defensive clauses themselves can be diverse,and in addition,the identities of the protected subject and the defended subject may be adjusted and exchanged under certain conditions,so it cannot be simply determined that the defensive object of the defensive clause is the controlling shareholder.The legal system value and extraterritorial experience of different types of defensive clauses in theory and practice deserve attention.The general rules of defensive clauses can be governed by the application of the principles of good faith and the prohibition of abuse of rights,so as to constitute a complete legal normative system regulating the exercise of defensive clauses.Secondly,at the judicial level,the subject of litigation of defensive clauses in the articles of association and the factors examined by the court when determining the validity of defensive clauses should be clarified,so as to reduce the disputes arising when defensive clauses are adjudicated.