The Study On Rules Of Shareholders' Rights Allocation By Amending The Chart Of Corporation

In the vicissitude process of China's legal system,the previous intervention in the state system usually leads to some distortion of legal transplant,which may result in the problems of path dependence.In 2005,China's legislative branch revised the Corporation Law of the People's Republic of China;this greatly expanded the company's articles of association autonomous areas.According to the relevant provisions of the Corporation Act,shareholder can make other arrangements in the corporation's articles for the following aspects:shareholder's voting rights,transfer rights,equity inheritance rights,cumulative voting and the distribution of profits claim.Except the five kinds of shareholder's rights expressed in the law,the articles of association cannot set other types of shareholder's rights.The theme of this paper is to discuss the amendment of the articles to configure the shareholders' rights,including how to regulate and what to construct about the remedy measures.On the basis,this paper attempts to propose a possible solution of path dependence.Revising the articles is just one way to allocate the shareholders' rights,this is in the area of company autonomy.Another way the legislature set the shareholder's rights directly in the law,which is a mandatory legal manner.After introducing the concept of corporate autonomy,it disturbed the balance of our traditional law enforcement system.In the field of regulation,state intervention factors presented a faded sign,but the autonomy provisions and mandatory provisions are difficult to distinguish,as the legislative cannot define a clear path of legal regulation.There is no change yet of the state intervention in the remedy field,it still maintains the legal remedies by a single,rigid way.In short,the relationship between the law enforcement and company autonomy is not straightened out,the necessary support operation of the company autonomy mechanism has not been sound,and configured rules of the shareholder's rights was fell into the trap of the auld path dependence.When it comes to the choice of regulatory approach,the corporation legislation should reasonably arrange both of mandatory provisions and autonomous provisions,Majority Rule should be the resolution of the autonomy in the articles of association.The range of compulsory norms is restricted to the ability of lawmakers' prior recognition,the execution of the autonomy rules are trapped by the high transaction costs when the shareholders try to achieve a consistent result according to negotiations.Therefore,Our Corporation Law should set the following right in the articles of association:voting right of shareholders,the claim of residual income,the claim for remaining property distribution,as well as the equity transfer rights,the preemptive right,the priority right to have paid,and the claim of equity buy-back.Shareholders' rights to know,the summoning right,the right of attendance,the right of presiding,and the proposal right should be set as statutory-grant rights.Only after analyzing the origin of the corporation's contract theory,it is possible to clarify the misinterpretation of Majority Rule in China's academic kingdom.Under the goal of the Kaldor-Hicks efficiency,Majority Rule is the only way to configure the shareholders' rights in the articles of association.As for the reconstruction of remedy measures,legislation should build a flexible,diverse means of remedy for shareholders.Due to the regulations limits and the implementing obstacles,compulsory norms and autonomous norms cannot settle the matter beforehand which Majority Rule is abused to allocate rights by most of the shareholders.Therefore,in order to achieve the legal goal of the Kaldor-Hicks efficiency on the whole,the minority shareholders must be given full remedy through arranging the system afterwards in the corporation law.There still are significant defects related to remedy measures in the current corporation law.The equity repurchases relief;damages relief,judicial dissolution relief,and shareholders'fiduciary duty remedy system need to be perfect in the law.These constitute a remedy system for the protection of minority shareholders with the invalid resolution of the shareholders' committee.Legal system transformation in our county is related to the involvement of the state power;the corporation law itself was promoted in a rapid evolving way,but at the same time it also appeared a "dysplasia" symptom in some systems.In order to solve the matter of the path dependence in our corporation law,clearly define the limits and areas of state intervention,we must make efforts in the following areas.First of all,legislative organ should clearly separate the prior regulation mode and the afterwards remedy measures,this can prevent the remedy method be infiltrated between the law enforcement factors and the regulatory field.Second,for the prior regulation,the legislature shall pay more attention on the relationship between social needs and legal requirements,and create rules in time to meet the demand of the shareholders autonomy.Finally,in the remedy system respect,the legislature should perfect the multiple remedy measures as soon as possible which can meet the feature of company autonomy.Court should lay stress on excavate relief function of shareholders' fiduciary duties;this can fill the vacancy of remedy measures.In brief,China's legal reforms have been changing in a shape of mandatory process,state intervention factors in the legal rules showed an uneven distribution of state.Under the action of the induced changes,the standard of judicial referee also cannot heal with the legislative flaw which was caused by the fusion shortage between the autonomy and enforcement.For these reasons,only taking a proper use of induction and enforcement,we could make the legal system innovation fit China' s national conditions.