The Study Of Corporation Bylaws Autonomy

The present dissertation bears upon a new topic—corporation bylaws autonomy. The idea of"corporation autonomy"and"corporation bylaws autonomy"take the core place of the Corporation Law. But due to the absence of the culture of the private right in our country, corporation bylaws autonomy seems one kind of extravagant thing to be discussed. In our era, the market economy develops widely, but the idea of corporation bylaws autonomy has not obtained enough recognition. The present article sails its study from the significance of corporation bylaws to corporation autonomy and suggests that corporation bylaws autonomy is the most important representation of corporation autonomy. The author tries hard to argue for an integrate system on corporation bylaws autonomy in order to provide a new point of view to understand the idea of autonomy.The present dissertation can be divided into three parts according to its reasoning logic:The first part is the inspection on the theory of corporation bylaws autonomy, mostly theoretical analysis. Corporation bylaws autonomy has provided a firm foundation for corporation autonomy. In this part, research is made on the internal relationship between corporation bylaws and corporation autonomy. The article discusses the significance of corporation bylaws to corporation autonomy. In the author's opinion, corporation bylaws is the means of corporation autonomy and even the autonomy of private law. On this basis, the article defines the internal factor for corporation bylaws autonomy—the nature of corporation bylaws as being norms of autonomy, and the external factor—the nature of Corporation Law as being a private law. By doing so, a theoretical platform is established for the reasonable existence of corporation bylaws autonomy. Based on these analyses, the defining criterion of corporation bylaws autonomy is also proposed in details. For example, the scope of corporation bylaws autonomy in the outer business of corporation is more limited than in the inner business of corporation.The second part is the inspection on the regulations of corporation bylaws autonomy, namely positivist analysis. During the writing of the present dissertation, the Corporation Law of our country was revised and amended on the biggest scale so far. The idea of liberalism has been established by the new Corporation Law. Therefore, the description of the corporation bylaws autonomy, and comments made by the author constitute the main body of this part of the dissertation. This part carries out interpretation and comments on the breakthroughs in the new Corporation Law on corporation bylaws autonomy.The following basic changes are illustrated in the revised Company Law of the People's Republic of China: looking on company as the possession of the shareholders according to the principle of self-governance of the private law; changing some compulsory rules into non-compulsory ones; reducing the interference of law; enhancing the effectiveness of corporation bylaws, and allowing the company to enjoy more rights of autonomy. The articles advocating the idea of autonomy can be easily spotted in the revised Company Law: a company may change its scope of business by amending its articles of association; the legal representative of a company may be represented by the chairman, executive director or manager of a company in compliance with its articles of association; investments in other enterprises or provisions of security by a company shall be determined by its board of directors, shareholders meeting or general meeting of shareholders in compliance with its articles of association; where the convening of shareholders meeting, general meeting of shareholders or board of directors of a company or the voting method violates laws, administrative rules and regulations or the articles of association of the company, or the resolution thereof contravenes the articles of association of the company, shareholders may, within sixty (60) days of the resolution, apply to the people's court for revocation; shareholders shall exercise their voting rights at the shareholders meeting in proportion to their capital contributions, unless otherwise stipulated by the articles of association; except as provided for in this Law, the rules of deliberation and voting procedures of the shareholders meeting shall be stipulated by the articles of association of the company; the method for the creation of the chairman and vice-chairmen shall be stipulated in the articles of association of the company; except as otherwise provided for in this Law, the rules of deliberation and voting procedures at the meeting of board of directors shall be stipulated by the articles of association of the company; where a natural person shareholder deceases, his shareholder's status may be inherited by his legal heir unless otherwise stipulated in the articles of association; where it is stipulated in this Law or the articles of association that the assignment or receipt of the company's major assets or provision of security shall be determined at the general meeting of shareholders, the board of directors shall, in a timely manner, convene the general meeting of shareholders that will vote on aforesaid matters; the general meeting of shareholders shall adopt accumulative voting system when voting on the election of directors or supervisors in accordance with the articles of association or the resolution adopted by the shareholders'general meeting; the articles of association may otherwise provide for restrictions on the transfer of the shares of the company held by its directors, supervisors and senior officers; after the company has covered its losses, and made allocation to the reserve funds, the remainder of the profit shall be distributed to the shareholders in accordance with the provisions of Article 35 in the case of a limited liability company, and in proportion to their shareholdings in the case of a joint stock limited company unless otherwise stipulated in its articles of association; etc. The second part of this dissertation follows these Articles to analyze the regulations which clearly grant rights to association of the company and the regulations which prescribe the effectiveness of the association upon the decision of the company business, and point out the breakthroughs of the revised Company Law in corporation bylaws autonomy.The last part is the suggestions the author makes to enhance the idea of autonomy of the corporation institutions in our system of corporation law. For one thing, the articles make comments on the shortcomings in the new Corporation Law on corporation bylaws autonomy. For another, along with the comments, the outlooks on the enhancement of corporation bylaws autonomy and recommendations on this new Corporation in this respect are put forward. The revised Company Law has taken bold and resolute reforms in respect of corporation bylaws autonomy and has made remarkable achievements, but there are still some limitations and places need to be improved. These limitations include the absence of legislation in some fields, shortcomings in the stipulation of procedure, immaturity of the technique of legislation, and the possibility to cause moral risks. The underlying reasons for the above-mentioned limitations are the gap existing between the idea of the corporation bylaws autonomy and the practice of it, and the unclear definition of the boundary of the corporation bylaws autonomy. The building of the system of the corporation bylaw autonomy is a grand project which needs continuous effort being made relating the field of law-making guideline, judicial practice, theoretical research and pertinent regulations. The questions raised here regarding to the revised Company Law serve the purpose of providing a new point of view for the corporation bylaws autonomy.