Opting Out Of Corporate Law Through Charter: A Theoretic And Institutional Analysis

This dissertation includes six parts.The introductory part is questions'issuing. After describing a debate under the topic of contractual freedom in corporate law,this paper puts forward this question: to what extent should corporations be allowed to opt out of the rules of corporate law by adopting charter provisions?That is,should any corporate law rules be mandatory, and,if so,which rules? This question is the research focus in the following parts.Chapter one is the general interpretation of charter and corporate under corporate autonomy. It first analyzes the meanings of corporate autonomy and the relationship between corporate autonomy and corporate charter,then,after discussing the essence of charter,it presents the basic viewpoint of opting out corporate law through charter.Chapter two analyzes the perfect structure of corporate law. This part firstly looks back several viewpoints with regard to the perfect structure of corporate law,and posts the reasonable foundation for mandatory rules in corporate law.Chapter three discusses the lines between mandatory rules and enabling rules. It introduces some macroscopical theories and some microcosmic theories,which distinguishes mandatory rules and enabling rules,and points out their defects and values. In the end of this part, it puts forward different arguments.Chapter four focuses on opting out corporate law through charter. According to different contracting mechanism,it separately analyzes opting out corporate law through initial charter and charter amendment,and establishes the standards for judgement for them. In the end,it applies this understanding into the cases studies.Chapter five is to analyze default rules in corporate law. It displays that default rules can reduce costs of bargain,advance information sharing and network externality. Then,it introduces and evaluates three approaches,that is ,hypothetical bargains approach ,reversible defaults approach and future oriented default,which can be used to design default rules. Finally , it exercises hypothetical bargains approach and reversible defaults approach to review three default rules in Chinese new corporate law.