Research On Problems Of Company Law Caused By Gome Disturbance

The battle for control of Gome occurred due to Huang GuangYu was detained from November 17, 2008 and has been basically settled on March 9, 2011 with the resignation of Chen Xiao, which proposed many new topics for the Company Law of China. Limited by the length of the paper and the ability of the author, the dissertation mainly discusses the following three issues caused by Gome disturbance.The first part: How to confirm the articles of association is legal and valid. First, interpret the concept, the role and characteristics of the articles of association, and such basic problems. Second, analyse the nature of the articles of association, the author believes that the articles of association has the nature of contract in the establishment period of the company, which has binding force between the shareholders or promoters; the contract becomes autonomous rules for the company when the company is set up.The nature of association articles should dynamically analyse at different stages of the company. The third, specific analyse the legal effect of the articles of company limited, also analyse the legal consequences and the remedies of the invalid articles. Use the validity of association articles theory to analyse the Gome's article that makes some people doubt, as well as the illegal operations in adding directors. The Company Law of China shall give same attention to identify the effectiveness of articles of association in advance, and legal remedies for the articles of association shall be invalid.The second part: How to ensure that major shareholder in the board's has reasonable seats. Generally according to the principle of "Majority Capital Speaks", the major shareholder has a certain share of seats in the board, but there is a special situation that the major shareholder loses control of the company, the company falls into the insider control. Based on this, from the special situation that major shareholder has lost control of the board, analysing the protections in the existing Company Law for vulnerable major shareholder is not enough, shall increase special provisions; At the same time the legislative suggestion is that the Company Law shall provide special protection for the founding shareholders. The special protection shall give multiple voting rights to the founding shareholders in special cases, or create a double shares system.The third part: How to define the manager duties. The manager duties shall change with the constant development of corporate governance, according to different classification methods, the duties can be divided into serving duty, leaving duty or basic duties, specific duties, unique duties and so on. But the fundamental legal basis for the manager duties is essentially the same. After that use company social responsibility theory and the human capital theory analyse manager duties.The paper concludes that the companies as the most important main body of the market economy, their lives lie in adapting to changing times rapidly, corporate governance is dynamic and should change with the times, and the Company Law reflects and records the changes shall constantly revise and improve with the times.In this paper there are some new ideas in the following aspects: Use Gome disturbance, which is still developing, as a topic. Analyse this fresh case with the knowledge of commercial law, make foreign and Chinese Company Law theory close contact to the reality of Chinese companies; Put forward the view that the Company Law should protect the vulnerable major shareholder and founding shareholder, and propose legislative solutions; Introduce the social responsibility theory of the company and human capital theory to review manager duties, the traditional capital based theory still need discussions.