Analysis Of National Compulsory Legal Problem Under Company Autonomy

The articles of association is the basic rules to regulate the company's organization and activities of rules,the constitution of the organization, the guarantee of shareholder's right and the important autonomy files of the company. And it is not only decided entirely by the shareholder's will but also regulated by the relevant law. In the corporation law and the articles of association, the state will and the private will which is stronger is always the focus of debate of the legislation practice and the legal research. The company as the main body of the market economy pursues the maximum profits while it seeks to maintain a sustained, stable and efficient operation. This state can not exist without the coordination between company autonomy and national mandatory. and many of our scholars have conducted in-depth research on their relationship. For example,Teng-hui in "The national mandatory of the corporation law" explain the actual and ideal situation of the national mandatory clearly. Zhang Kaiping in the "deconstruction of our rights" said the company autonomy is the performance of autonomy of Private Law in the field of the company. The law gives the management control rights to the company to conduct self-management.And this self-management is called company autonomy legally. Some scholars such as Zhang Delin have a view in "Law and market economy ---from the perspective of economics and law to explore" that there are five requirements of enterprise autonomy. First it has to have truly qualifications of legal person. Second the status must be equal. Third it should be the capital enterprise and established on shareholders, capital stock and stock rights so that it can forms corporate governance structure. Forth the behavior of enterprises bound by laws and articles. Fifth it is not an appendage of the competent authorities.It has been concerned for a long time in our lawmaking area about state compulsory and company autonomy of the Company Law of the People's Republic of China, such as 1993's Company Law of the People's Republic of China, as some limited circumstance of history including the short of the standard experience about company erection and management, there are still many disadvantages existed. One of the most significant disadvantages is that the company overemphasizes the control but overlook the autonomy in operation which strangles the company's vitality. The new company law of 2006 turned its intention from controlling type to autonomous type so that it could handle the relationship between state compulsory and company autonomy. The Company Law of the People's Republic of China was amended and adopted at the 18th session of the Standing Committee of the Tenth National People's Congress of the People's Republic of China on October 27,2005. The new Company Law's aim is to realize the turning from controlling type to autonomous type, handle the relationship between state compulsory and company autonomy, and handle the function allocation and settings of compulsory rules and arbitrary rules. It reflects the value and the aim of the Company Law of the People's Republic of China which is adapting to the development of the new period. This article is also based on this concept, a comprehensive introduction of the legislation and the theory of company's constitutions autonomous, and tries to recommend some practicable legal suggestions which can make company's constitutions function better and adopt the development of the market economy in the new period.This article is divided into four parts, the first part and the second part introduced the basic theory about company autonomy, the autonomy to the articles of association, state constraint, and the relationship between the three. The third part described the advanced experience of the articles of association autonomy and state constraint in the practice of foreign legislations. And the fourth part gave some specific legal advices to solve the legislation question in our Corporation Law about the boundary of state constraint in articles of association. Corporation Law should have the character of growth. It has not only to regulate the social order, but also to guide the development of society. So it's important to clear the value and the content that Corporation Law should have, think about the type of Corporation Law which can really adapt to the future social and its justifiability and forward-looking. Therefore, it's necessary to study the theory of state constraint in Corporation Law.It is a trend of contemporary legal research that bring the company autonomy suggested by Science of Commercial Law and appropriate state intervention supported by Science of Economic Law into the research area. Company autonomy also need state control while state compulsory playing a role in company autonomy, but the aim is to guide company autonomy. How to handle the relationship between company autonomy and state compulsory? On one hand, overemphasize the state compulsory will weaken the company's function and role. On the other hand, overemphasize the company autonomy may case company's spontaneous disorder and confusion in market economy. Therefore, the research of state compulsory institution in the use of Company Law of the People's Republic of China has theoretical and practical significance, and has important meaning to perfect lawmaking of the Company Law of the People's Republic of China and improve healthy development of the economic organization and finally realize the coordinated development of the whole interests of society.