Research On The Arbitrariness Of Company Law

The arbitrary norms of company law refer to the company's economic structure and system construction,which is the core issue of the company's legal system.With the globalization of the world economy and rapid development of modernization of the company law,the main competition of various countries' company law is reflected in the reform and innovation of the arbitrary norms of company law.The amendment of company law mainly focuses on the system supply of the arbitrary norms of company law,in order to take priority status in fierce economic competition and institutional competition.This paper takes “the arbitrary norms of company law” as the object of study,using the normative analysis,comparative analysis,economic analysis,empirical analysis and method of sociological analysis to comprehensively and systematically elucidate related issues of the arbitrary norms of company law.On this basis,this paper proposes some specific suggestions on how to perfect "the arbitrary norms of company law".this academic paper consists of five major parts,besides the introduction and conclusion.:The first chapter is to figure out the basic theory of the arbitrary norms of company law.The purpose of this chapter is to clarify the basic theory of the arbitrary norms of company law,to understand the essence of the arbitrary norms of company law,and to define the concept of the arbitrary norms of company law.Peremptory norms and arbitrary norms are both important contents of private law norms.This chapter begins with examining the concept of arbitrary norms,and obtains three distinctive criteria after examining the distinction between peremptory norms and arbitrary norms.This paper scientifically defines the connotation of the arbitrary norms of company law through comparative study,and then makes classification of the arbitrary norms of company law,which provides the basis for study.Firstly,it discusses the reasons for the existence of the arbitrary norms of company law and the concept of multiple values;secondly,it discusses the theoretical basis and practical basis for the existence of the arbitrary norms of company law;finally,it explains the roles and functions of the arbitrary norms of company law.This chapter demonstrates the existence of the arbitrary norms of company law from multiple perspectives,and strives to prove the legitimacy of the existence of the arbitrary norms of company law.The second chapter is the arbitrary norms of company law under the perspective of economic structure.Firstly,this chapter takes the contract theory to analyze company,and analyzes the state-should-be of the arbitrary norms of company law.The contract theory holds that the company law is a standard contract text with the function of filling the loopholes;the company law has the character of empowerment and arbitrariness,which can adapt to the development of social economy,and the company law is essentially the arbitrary norm.Secondly,this chapter analyzes the economic structure of closed companies and public companies,and draws a conclusion that there are great differences between them,especially great differences in the consensual system where the company law's allocation should be different,otherwise it will increase transaction costs and agency costs artificially.Specifically,the scope of closed company's allocation of the arbitrary norms should be larger than that of public company,so the allocation of the arbitrary norms of company law should consider the economic structure.Thirdly,on the basis of the classification of the structure of company law,this chapter puts forward the basic characteristics of the allocation of the arbitrary norms of company law,especially proposes that different economic structure of company should apply different allocation standard.Fourthly,according to the basic theory of this chapter,the author proposes some suggestions to amend some articles of the Company Law of China.The third chapter is the arbitrary norms of company law in the articles of association of the company.This chapter holds that company autonomy is mainly embodied in the autonomy of the articles of association of the company.Articles of association of the company are the most important areas in which the arbitrary norms of company law can be applied.The arbitrary norms of company law can be applied in the articles of association of the company in the way of empowerment or default,and the articles of association are in place to establish the autonomy of the company.Firstly,after studying the legal nature of the articles of association of the company,this chapter holds that the articles of association have the nature of contract and belong to the legalization type of contract.The articles of association play an important role in realizing the autonomy of the company.The establishment of autonomy clauses of the articles of association is the basic way to realize the autonomy of the company.Secondly,for the basic laws of the articles of association for allocation of arbitrary norms of company law,this chapter focuses on the different mechanisms of the formulation and amendment of the articles of association,which become the main reasons and principles for the necessary restrictions on the amendment of the articles of association.Thirdly,this paper studies the legal effect of restricting the transfer of stock rights by the articles of association,and analyzes the legal effect of the transfer of stock rights stipulated in Article 71 of the Company Law of China through comparative study,and puts forward concrete suggestions to improve this article.Finally,after comparative study on the anti-takeover provisions of various countries,this chapter summarizes the conclusion of the legislative model established under the anti-takeover provisions in various countries,and analyzes the validity criteria of anti-takeover provisions in China's articles of association with specific empirical cases to put forward concrete suggestions for the design of anti-takeover system in China.The fourth chapter is about the arbitrary norms of company law in the diversified allocation of shareholder rights.Based on the unified allocation of shareholders' rights,this chapter points out that the compulsory standard of one share one right cannot satisfy the need of diversified financial investment of company.It is necessary to make diversified allocation of shareholders' rights through system design in order to adapt to social and economic development.Firstly,after studying the basic theory of the allocation of shareholders' rights,this chapter draws the conclusion that one share one right cannot meet the needs of the development of company's finance and investment under the condition of shareholders' heterogeneity,which needs revolutionary reform;secondly,this chapter makes a special study of the accumulate voting system which has been reformed in the legislative models of various countries,and reflects the reasons for the decline of the development of the accumulate voting system.China should design the accumulative voting system as a norm of empowerment,not a default norm,let alone a mandatory norm.Thirdly,through the comparative study of the company law of developed countries,the author concludes that the important value of the diversified allocation of shareholders' rights not only meets the realistic needs of the capital market,but also more importantly conforms to the basic concept of the company autonomy,advocates that China should introduce the system of classified shares and adopt the double-deck ownership structure of authorized arbitrary norms,and puts forward specific proposals for building the system.The fifth chapter is the judicial guarantee for the implementation of the arbitrary of company law.Essentially,it studies the identification and application of the arbitrary norms of company law,the content of judicial intervention in the implementation of the arbitrary norms of company law,and the judicial remedy for the implementation of the arbitrary norms of company law.Firstly,from the study of legal language,the author reviews the language problems in legal texts,because in China problems existing in the formulation of legal texts lead to difficulties in judicial identification and legal application in the process of law application.Secondly,the author discusses the characteristics,principles,functions and roles of judicial intervention in the implementation of the arbitrary norms of company law,and points out the important value of judicial intervention.Thirdly,this chapter takes the arbitrary norms of articles of association,voting rights and company resolutions as the object of analysis,and discusses issues on the legal effect of violating the arbitrary norms of company law,the judicial rules of abusing shareholders' voting rights,the litigation protection of shareholders' evaluation rights and the judicial determination of the validity of flaws in company resolutions.Providing evidence to prove the legal effect of violating the articles of association,abusing voting rights and flaws in company resolutions,the author points out that without the legal protection of judicial intervention,the arbitrary norms of company law cannot be implemented,and the intervention of company law is the fundamental guarantee for the implementation of arbitrary norms of company law.