The Corporate Law Random Norm Research

Arbitrary norm is an important co ncept in th e field of private law,and the theoretical essence is to respect the parties' autonomy of will.Based on the private law attributes of Com pany Law of the Peop le's Republic of China,the setting of arbitrary norm determines its operation efficiency to a certain degree.Com pany Law shall regard arbitrary norm as the basic nor m,and should be the right protection law but not a control-based law,needless to say.However,freedom and restriction are the permanent topics of the theories of Co mpany Law.Especially after the glob al economic impact in 2008,the reflection on the occurrence of liberal econom y make state intervention return to a certain degree.Therefore,various countries impose more restrictions on companies which are the most important economic entities,especially public companies.Though com pany autonomy and deregulation are the com pany development trends,the liberation doesn' t go smooth.S tate intervention and m arket autonomy show the tidal fluctuation.Especi ally when large-scale companies commit fraud,the direct social response is often th e appeal to strengthen company regulation.In China,the public company regulation systems are dominated by Securities Law of the People's Republic of China and normative documents designated by CIRC(China Securities Regulatory Commission).It causes the dual-track system,namely,general companies refer to Company Law,and public companies refer to Securities Law.The two different legal system s have dif ferent connotation values,which causes the swinging of corporate governance practi ce.However,for public com panies and general companies,corporate governance and practices are the private fields,after all.It is worth discussing about whether direct state regulatio n is appropriate or not.Especially in China,given the political consideration,it is general for China to intervene in corporate govern ance.For example,companies assume the function of industrial restructuring.Com panies,as the commercial s ubject,are definitely the industrial restructuring subject,but it is doubtful whether it is appropriate that a state imposes the function on companies in the wa y of direct regulation.It is especially worthwhile discussing about whether judicat ure,as a state intervention m eans,can assume the function of econom ic regulation.For exam ple,by prom ulgating many Several Opinions,the Suprem e People's Court of the People' s Republic of China replaces legislative activities with judi cial judgment activities to im plement the national policies in fact.In the bankruptcy case judgment,people's courts are required to give full play to m ediation and reconciliation for the enterprises which meet the bankruptcy conditions but also comply with the state in dustrial policies and have development prospects and actively and ef fectively save them.It is one of the important goals for people's courts to endeavor to promote corporate restructuring and success in reconciliatio n,promote employment,reduce negative influences from business failures and optim ize resource allocation while they are hearing bankruptcy cases,which are also the inev itable requirements for the people's courts to maintain growth,protect livelihood and stabilize the overall situation.For example,in the field of company pricing,China proh ibits the discount issuing of stocks,actually,market pricing is replaced in th e way of direct gov ernment intervention.For example,after the occurrence of corporate issues,when market pricing is unavailable,corporate value is evaluated,China's judicature holds the negative afterwards regulation stance,which is dif ferent from the state intervention m odes of the m arket economy.According to the internal prescription for the m arket economy to exert the fundamental role,it is n ecessary to regard loose pre-regulation and active afterwards regulation as the m ain state intervention modes,and conduct state intervention in indirect and procedural m anner.But Chin a does it exactly in an opposite way.Regarding the com pany activity regulation,st rict legislation repl aces the role of market selection;selective enforcement repl aces the role of m arket competition;and companies avoid afterwards state interv ention with universal il legality(practical actions).Therefore,it is necessary to discuss about the state intervention modes in the field of theories of company law,which is the comm on topic of Company Law and Economic law.The ideal of laws should be to deter the potential groups w hich might break laws through ef fectively punishing those past law-breaking events.state intervention should be humble in front of the market mechanism,and the market shall exert the fundamental role.The deep meaning that the market exerts the fundamental role is that it is unnecessary to stren gthen government regulation whenever economic issues occur.Government intervention should be always afterwards,like the internal prescription of judicial systems which is always targeted to the past injustice.Therefore,the paper regards the arbitr ary norm which is the basis of company autonomy system as the discussion object.Firstly,as the star ting point,the paper discusses about the generation paths of co mpany systems and natures o f companies,and then in terprets the due com position status of Compa ny Law by applying the corporate contract theory.Namely,a com pany is the connection of contracts,and Company Law should respond to the attrib ute of com pany.Company Law should regard arbitrary norm as the basic specif ication.Secondly,it m akes theoretical analyses on arbitrary norm,including technical analysis(e.g.: norm identification)and jurisprudence analysis(e.g.: philosophical foundation,economic foundation,etc.).the internal attributes of arbitrary norm raise requests to state intervention.Thirdly,through investigating the micro systems,it analyzes the reforms of regulation modes of Company Law,and obtains the deve lopment trend of Company Law fr om compulsory regulation to arbitrary regulat ion,reflects the existing im proper systems theoretically,and of fers the reform counter measures.Lastly,it discusses about the guarantee mechanism for implementing arbitrary norm,and proposes that it should be based on limited government intervention,by the means of procedural intervention,and guided by judicial activism to implement the arbitrary norm of Com pany Law,and reshape the judgment logic.Concretely in micro systems,it is necessary to perfect the shareholder litigation system with shareholder representative litigation and shareholder direct litigation as the main contents.