Research On The Autonomy Of The Articles Of Association

Articles of Association are the basic documents carrying on the clear instructions to the company organization and function criterion, the company nature, the management scope, internal agencies, the active way, the authority assignment, company members' right and duty and some other contents. They are the most basic rules relate to the company operation, and they are at the highest position in many company internal management systems, therefore, they are called the charter of the company internal management. The modification of the Corporation Law has already completed, and the new "Corporation Law" highlights the autonomy of the articles of association, so company members have been allowed to carry on the fill and the revision through the articles of incorporation to the company law standard, thus made in a broader scope to the company affairs to make a autonomic and appropriate arrangement. This article through the meaning analysis to the autonomy of the articles of incorporation, researches the autonomy's theory significance and the practice value and its relations with the company autonomy, and divides the boundary of the autonomy of the articles of incorporation on this foundation, namely the basic boundary, the value boundary and the regulation boundary, and from a new angle to understand the new "Company Law" about the articles of incorporation, and studies the revolution of the articles of incorporation which the new "Company Law" modification brings to, analyzes its superiority and proves the difficulty and the questions encountered in the actual trade. The full text altogether is divided into four parts.The first part is the theory value analysis to the autonomy of the articles of incorporation. This part has firstly emphatically analyzed the signification of the autonomy of the articles of incorporation and three major characteristics, including freedom, autonomy, and relativity. Then this part explains the relations between the company autonomy and the autonomy of the articles of incorporation. The articles of incorporation are the important ways to the autonomy of the incorporation; simultaneously, the company autonomy is the goal and finally aims to the autonomy of the articles of incorporation. About the important theory significance and the practice value of the articles of incorporation autonomy, the author believes the autonomy of the articles of incorporation performs to the shareholder rights and interests to be clear about, to be fixed, and makes the articles of incorporation to be important tools to help the shareholder to defend their legitimate rights and interests; And encourages investment, simultaneously, provides the particular standard basis about the shareholder investment and the capital operation. The autonomy of the articles of incorporation also strengthens the management of the company and the individual enterprise culture; meanwhile, it encourages the management innovation.The second part is the understanding to the boundary of the articles of incorporation autonomy. The articles of incorporation concurrently have the characteristics of autonomy and legality, and both of them are coexisted and inseparable. The relation between the legality and the autonomy characteristic of the articles of incorporation reflects the compulsory and free nature of the company law. "Articles of incorporation and company law", "company autonomy and government regulations", " the autonomy and legality of the articles of incorporation ", just like "two wings" and "two wheels" with which the company can survive and develop. If the company only has the restraint from the autonomy rules of the articles of incorporation, it is impossible in the modern market economy competition to guarantee the company to survive and grow strong; If the company only has the restraint from the rules of company law , the company is similarly also difficulty to survive and develop. The articles of incorporation are the company autonomous rules, and take the company autonomously as the goal. The company law is the national and compulsory, and it takes the government regulations as the goal. Where is the boundary between the autonomy of the articles of incorporation and the compulsory of the company law? This article has carried on the analysis from three angles, the basic boundary, the value boundary and the regulation boundary. The basic boundary refers to the compulsive law rules, the public orders and good customs. The autonomy of the articles of incorporation is limited. The value boundary refers to balance point of the equity and efficiency, the freedom and the public welfare. These two groups of values both are contradictory and unification. The regulation boundary makes the foundation in dividing the company law rules into the structural rules, the distributional rules and the fiduciary rules, and compares two kinds of different company types of closed company and open company, and estimates the compulsion of the rules, thus divides the boundary of the autonomy of the articles of incorporation. This kind of division is certainly not absolutely, and it must synthesize considered various factors and inquire into its legislation value and the legislation policy, and be on the overall regulation foundation to carry on individually ponders. Moreover, to the fuzzy boundary, it should unify the value boundary to analyze and judge. Whether the vacuum of the rules is the autonomous regulation, the author believed, it should distinguish closed company and the public company to analyze separately, and to investigate the company commercial operation reality. It cannot be judged generally.Third part of relates to the new revision of "Company Law of China" in 2005 about the articles of incorporation regulations, proves the breakthrough of our country's "Company Law" about the autonomy. In our country's "Company Law", the articles of incorporation are more particular than the company law regulations. Some regulations are the supplement to the company law substitution and some regulations are the substitution to the company law substitution. The new "Company Law" greatly expands the autonomous scope of the company and its shareholders. Its breakthrough of regulation autonomy mainly displays in two big aspects, the company management system and the company capital system, which include the procedural rights and the entity rights. "Company Law" relaxes many limits, and allows the articles of incorporation to arrange the company internal affair or the internal management relations if it does not violate the prohibition laws and the honest credit principle. The autonomy gives the company a bigger autonomous space, and in the certain degree displays the articles of incorporation to be supposed to have the function as the most important autonomous rules of company. It also reflects that the company be allowed to make the articles of incorporation to be an individual design, and manifests the function to be the company autonomous constitution of the articles of incorporation. The fourth part firstly elaborates the autonomy superiority appraisal to our country's "Company Law". In the company capital system aspect, the autonomy regulations in the new "Company Law" encourages investments, enhances the efficiency, reduces the threshold which the company sets up, and strengthens the circulation of capital flexibility. At the same time, the release gives the articles of incorporation massive independent rights. In the market risk aspect, it also allows the company to indicate in the market heartless diversification according to its own meanings and to make a freedom decide after the deliberation of the articles. This can adapt the developments of the time, promptly adjust what the company should do, and guarantee the shareholders' benefit maximization. In the management aspect, the autonomy of the articles of incorporation causes the rules of the company to be operational. In the shareholder right and the trustee duty aspect, the autonomy entrusts with the company the independent choice space, and favor is concerned to the balance of benefits. The ultimate objective of the new "Company Law" which must realize about in the autonomous regulations is to make the articles of incorporation to become an individual company highest autonomous standard.However, in the concrete trading practices, the articles of incorporation have very many problems. The most important question we face to is how to change the wrong and the light consciousness of the operators to the articles and how to prominently emphasize the vital role of the articles in the company. Next, we must make the establishment of the articles of incorporation and the management of the company to be a closed union, and formulate individual and practical feasible articles of incorporation. At the same time, we should not abuse the autonomous principle of the articles of incorporation and surmount the autonomous scope. We should strengthen the articles of incorporation in the practice and in the execution. The enhancement of the actual effect of the articles of incorporation is no doubt to have to depend upon the company own and persons' autonomy of its interior attendees, but actual effect strengthening of the regulations depends on the monitoring from the law, namely the country must strengthen surveillance and the management to the implementation of the articles as the external force.