The Research On The Assertion Of The Validity Of The Mandatory Norm In The Company Law

Since Coase proposed the agreements of enterprises, a lot of scholars think the company law is the extension in the field of company of contract law, but review the company law of our country, the situation is not like this. Though regarded as the private law, the company law is still the subject taking arbitrary norm as legal norm, but the simple arbitrary norm has disappearance functionally, must need to have mandatory norms, in order to get the result of filling a vacancy in function. Therefore, there are a large number of company bill ones in the judicial practice promptly, need the judge to judge to violating the behavioral effect of the mandatory norm of the company law, but what a mandatory norm of distinguishing the company law, is the puzzled place of the circle.This text uses the method of analysis of the case, from a case of buy-back share of company, analyze the two different view this case involve. One view thinks company buy-back share violate mandatory norm of company law, should be invalid. Another view thinks standardizing the normal and managerial and normal difference of validity nature mandatorily of company law think company's buy-back share is a managerial norm of the company law, the legal consequence not causing the behavior to be invalid.Just from the focus of this dispute, this text has launched research, the research contents are divided into four parts, Part one defined the mandatory norm for company law. The mandatory norm is the norm is the legal norm, do not allow parties to get rid of the applicable norm through agreeing on or consulting. Part two have analyzed in violating the behavioral effect with mandatory normal for the company law. Infringe the provisions of mandatory normal legal consequence from the company law separately, the legal consequence of the behavior which violates the mandatory norm and the responsibility of the behavior. It draws the conclusion that not all the violation of the mandatory norm will cause company to be behavior invalid. This is the different legal consequences of violation of managerial norms and administrating norm.Part three distinguish the mandatory norm of the company law, from several kinds of different standard analysis of differentiation, draw conclusion that the standard is whether the company behavior has infringed the particularly with majority interests, distinguish managerial norm and the administrating norm. Part four analyze the method of rendering a administrating normal and managerial normal. In the judicial practice, one can judge positively, reverse side is judged, and judge synthetically, can judge according to legislative purpose, judge through value particularly, among them the main method is the method that the value weighs. But must improve judges' professional skill and quality while this method is applicable, restrain freedom from judging the enforcement of measuring right, thus enable the case to be dealt with justly, judicial authority can maintain, the public's cognition degree to administration of justice can improve.