The Contractual Theory Of Corporation And The Coercion In The Corporation Law

Corporation autonomy and corporation coercion are a pair of conflicting concepts from a statistic perspective, while dynamically they can analyzed with the tool of game theory. Such a track can be seen in the origin and development of firm: firms are always hesitating between autonomy and coercion. Firm needs freedom in operation, but due to its meaningful position in a market economy government regulation in this case can not be completely eliminated. The outcome is that even in private corporation law, compulsory terms are not rare, let alone the role of government intervention tends to be emphasized in macro-economy. Those who advocate comprehensive autonomy of firm usually suffer from the lack of theoretical support, and firm law in practice definitely can not serve as their foundation. After Coase published his The Nature of The Firm and suggests a theory of contract about firm, his special angle enlightens many following economists and also offers some kind of new directions for researchers advocating comprehensive autonomy, who think they've got what they do need. Researchers of firm law begin to go down further with Coase, base their arguments on contract theory and carry out the analyses, finally reach the conclusions such as "firm is a set of contractual rules", "firm law is standard contract document" and "the judicial randomicity of firm law". Such views obviously conflict with traditional arguments and accordingly come under critics and doubts. Of course, firm contracts can be observed in large amount in daily life, and the activities of market participants in signing all kinds of contracts and the existence of internal contracts in firm can not be denied. However, is it proper for us to combine these facts and theories, and conclude the randomicity of firm law, or conclude that firm law is only the extension or special form of contract law in firms? Can the contract theory serve as the life-saving straw for the comprehensive autonomy? How can we position nation and government in the filed of firm? Especially in China, how can we position the compulsory terms in present firm law and the suggested draft of its amendment? These issues are what we want to resolve and clarify in this thesis.In the comparison of contract in economics and in law, we can find some commons such as equality in signing and pursuing interest maximization. But differences do exist in the five aspects of emphases, enforceability, priori confirmation of contractual terms, relativity of contracts and specific contractual coverage. Unfortunately judicial researchers seem not to do detailed differentiation when introducing contract theory to jurisprudence. Furthermore, earlier contract theory can be characterized as some kind of "complete contract theory", which assumes that complete rationality of economic agents, information symmetry, complete equity etc. But these assumptions can hardly find counterparts in reality and therefore cannot be used to regulate the practices. The later incomplete contract theory, though avoiding such awkwardness, still cannot be enforced by a third party in nature, an obstacle for further application in law. More specially, the two core theories of contract theory, transaction costs theory and principal- agent theory, we can see no material help they can provide for advocators for comprehensive autonomy. In economics, the key issue is to save costs and promote efficiency, and based on this, judicial scholars argue that the value of firm mainly lies in saving transaction costs, they furthermore deduce that firm law is actually the standard contract documents. But this efficiency-oriented legislative value is to some extent dogmatical, neglecting other values at least equally important, such as equity, good faith, public interests etc. As comes to principal-agent theory, there're considerable differences between law and economics. Thus our conclusion is that the randomicity arguments in firm law based on contract theory of economics is logically incorrect. Accordingly contract theory in ec...