| This thesis is divided into 3 parts and the main contents are as the following:Part-1: Implication of corporate charter and corporate autonomy(I) Implication of corporate charterCorporate charter refers to the document that legally regulate such vital events as corporate nature, aim, organization, principles of activities, name and address, business scope, organizational organs and manner of activities. Charter is a vital symbol of the corporate identification as legal person, and a necessary premise and condition of the incorporation and survival of a company regulated by the company law as well. According to the regulations of the Chinese company law, the corporate charter in China is composed of one single document.1. The content, nature and characteristics of corporate charter. The content of corporate charter: the content of corporate charter refers to the items recorded by corporate charter. As for the nature of corporate charter, there are mainly three theories in China and other countries: (1) the theory of autonomy, (2) the theory of contract, (3) the theory of charter. The basic legal characteristics of corporate charter include: (1) charter is a necessary condition of the incorporation of a company; (2) charter is the basic principle of corporate behaviors; (3) charter possesses the position and functions as charter in a company; (4) charter is the specific embodiment of the public principles of the company law; (5) charter is the external certification of reputation; (6) charter is the corporate norms of autonomy; (7) the formulation and amendment of charter must be conducted in accordance with laws.2. The formulation and amendment of corporate charter. The subject and procedures of formulating corporate charter, serving as a necessary document of the incorporation of a company, differs according to the nature of a company. The formulation of corporate charter in a limited liability company is different from that in a stock company, and the formulation of corporate charter in a stock company incorporated by sponsorship is different from that in a stock company incorporated by public share offer as well. Their amendment is various according to the nature of a company as well.3. The legal force of corporate charter. If corporate charter, serving as the autonomous norms of a type of social organization, has legal force, it is must be formulated according to the company law, and include items that are legally recorded. Otherwise, it cannot come into effect. (1) The force of corporate charter on the company. Corporate charter is the autonomous norms of a company, so the company should certainly accept the binding force of charter. (2) The force of corporate charter on shareholders. The charter is regulated by shareholders, and has binding force on shareholders. (3) The force of corporate charter on directors, supervisors and senior officers.4. The difference between corporate charter and contract. Corporate charter and contract are the documents with different nature after all, so they have obvious difference: (1) Corporate charter and contract are applicable to different scope. (2) The legal requirements of adopting and amending corporate charter and contract are different.(II) The legal consequences of corporate charter and the discussion of relevant issues1. The analysis of the legal consequences caused by the event that the internal subjects of a company violate corporate charter. The internal subjects of a company include the company itself, and its shareholders, directors, supervisors and senior officers. Of course there is still another special subject, i.e. the employees of the company. (1) The analysis of the legal consequences caused by the event that the company violates corporate charter. The company's behavior of violating charter will affect the internal subjects of a company—shareholders, directors, senior officers and employees, and hence the company should be liable for these subjects. The company's violation of charter will have legal consequences on its shareholders: shareholders are the investors of the company, and they own such rights according to laws and corporate charter as return on investment, corporate decision, vote, and management. On the condition that the company violates charter, it is usually the rights of relevant shareholders that suffer infringement. (2) The analysis of the legal consequences caused by the event that the shareholders of a company violates corporate charter. Compared with other subjects, the shareholders are subject to more regulations of the company law upon the legal consequences caused by the violation of corporate charter. According to the legal regulations, the author deems that if a shareholder of the company violates corporate charter, he or she should assume the following kinds of liability: according to the nature of liability, it can be categorized into the legal consequences caused by infringement upon rights (such as a shareholder's rights, including the regulations upon the management of controlling a shareholder's violation of related transactions) and the legal consequences caused by breach of contract (For example, a shareholder should assume the liability for false contributions ); according to the objects of liability, it can be categorized into the a shareholder's legal consequences upon other shareholders, a shareholder's legal consequences upon the company, a shareholder's legal consequences upon creditors, etc.(3) The analysis of the legal consequences when directors, supervisors and senior officers violate corporate charter. The main regulations upon the legal consequences caused by the event that directors, supervisors and senior officers violate corporate charter are included in the Article 21, 113, 150,and 153 of the company law. According to the regulations of the company law, if the above persons violate corporate charter, they should assume liability for the company and shareholders. (4) The analysis of the legal consequences caused by the event that the employees of a company violates corporate charter. The Chinese company law does not definitely regulate the corporate charter's bind effect on the employees of a company. The author deems that corporate charter is the big charter of a company, and the highest principle of the corporate governance. The corporate governance should include the issues related to the employees of a company.2. The analysis of the legal consequences caused by the event that the external subjects of a company violate corporate charter. Because the Chinese company law does not make any regulation upon the legal consequences caused by the event that the external subjects of a company violate corporate charter, the illustration on this aspect is pure theoretical. This issue should be discussed according to the actual situation: the issue of who owns the right to claim for relief against the event that the external subjects of a company violate corporate charter. The author deems that if the external subjects of a company violate corporate charter, the infringement is mainly upon the interests of the company, its shareholders and other creditors, so they have to right to proceed against such behaviors. If the external subjects of a company violate corporate charter, according to the principle of legally judging the civil and commercial behaviors, the force only includes valid, invalid or revocable. However, based on the complexity and various natures of the articles in corporate charter, it is not proper to establish only one principle of judging the force. Instead, different standards should be established according to the content of charter. All behaviors that violate the compulsory articles in corporate charter (the behaviors that must observe the legal and administrative regulations) should be regarded invalid. Some behaviors that violate the articles of authorization and the articles of guidance can be regarded as revocable behaviors. In order to encourage trade and safety, it should be defined that the arbitrary articles in the corporate charter should not possess binding force on the external subjects of a company; after the behaviors of violating corporate charter are regarded as invalid or revocable, when it is required that the external subjects of the company should assume liability, the degree of faults should be sufficiently considered, etc.(III) Implication of corporate autonomyCorporate autonomy refers to the rights of the company, serving as the private subject, to legally conduct self-binding, self-normalization and self-governance, to assume risk, and conduct self-management and make decision by itself according to the market rules, on condition of market economy. There are two meanings: on one hand, the company should be a private subject that is independent of shareholders; on the other hand, the company should be a private subject that is independent of governments.According to the summarization, there are as many as 24 items that the company law definitely permits the shareholders of a company to regulate by themselves through corporate charter. This provides relatively sufficient space for shareholders to conduct autonomy through corporate charter, and meanwhile to design a personalized corporate charter (especially the corporate charter in a limited liability company).(IV) A brief evaluation of the present situation of corporate autonomy Although the company law has made a cheerful progress in the aspect ofthe autonomy of corporate charter, the implementation of the task of the autonomy of corporate charter is still very arduous. This is not only represented by the psychological and cultural effect, but also the legal binding to the corporate autonomy. For example, in such normative documents as the Guidelines for Corporate Charter of Listed Companies issued by the Securities Regulatory Commission, the so-called guidelines are indeed the compulsory norms, and still valid.Part-2: The charter's functions upon corporate autonomyAccording to the basic requirements of the company law and the corporate characteristics, the formulation of a corporate charter with fresh content is not only the premise of the corporate establishment of personality, but also the practical requirement of corporate autonomy. Corporate charter does not only fulfill the functions that conform to the purposes of the sate company law or relevant administrative regulations, but also fulfill such functions that cannot be substituted by the company law or relevant administrative regulations: (1) to safeguard the realization of governing norms in the company law; (2) to make up the deficiencies of the regulations in the company law; (3) to balance the subject interests of all parties and hence improve the harmonious development of the company. Part-3: The design and thinking of the system of corporate charter and corporate autonomy(I) The thinking on the paths of the autonomy of corporate charter How to establish the concept of establishing the autonomy of corporate charter, and how to seek the methods of the autonomy of corporate charter better, can be considered from the following aspects: firstly, form the perspective of the legal articles of corporate charter itself, the absolute recorded items, relative recorded items and arbitrary recorded items should be differentiated. Thus, the parties of a company can accomplish the text of charter through self-selection and design according to the specific characteristics of the company. Secondly, from the overall design of norms in the company law, the company law is a synthetic system of compulsory norms and arbitrary norms. The company law should definitely differentiate different corporate types in order to design the system of norms. As for the limited liability companies, the arbitrary norms should be more than the compulsory ones; as for the stock limited companies, the compulsory ones should be more than the arbitrary ones. Finally, from the view of historical experience, the excessive regulation of administrative authority upon companies will definitely make companies affiliated to the administrative authority, and make corporate charter an invalid document. During the shift of system in China, more administrative interference should be stripped in order to cultivate the company's space for developing the system of private law.(II) The suggestions on adjusting the compulsory norms in the company lawFrom the perspective of analyzing jurisprudence and its nature, the company law belongs to a kind of autonomous organization law unlike the contract law that is a kind autonomous behavior law. The contract law should include more arbitrary norms than compulsory norms, in order to embody the characteristics of the autonomous behavior law. To be simple, the public laws should be regulated, but the private laws should be autonomous. Based on this standard, the author attempts to categorize the legal norms of the company law into two types of authorization and limitation. The former includes compulsoriness, selectiveness, and arbitrariness. As for the distribution of the three kinds of norms above in the Chinese company law, the structure is obviously unreasonable. The compulsory norms of authorization are relatively numerous, while the selective and arbitrary norms of authorization are less. During the process of amending the company law in the future, it should be considered to increase the number of the last two norms. If the regulations upon the internal management of a company are increased, most of its content should be the selective and arbitrary items.As for the issues of the governing structure of a company, transfer of investment and transfer of limited liability companies, the compulsory regulations in the previous company law should be changed into arbitrary norms that can be altered by the parties according to charter. In addition, as for the transfer of shares of a limited liability company, it is certainly a great progress for the company law to respect the autonomous behaviors of the shareholders of a limited company. Firstly, the core of transferring shares lies in the autonomy of will. Secondly, the establishment of limiting the transfer of shares needs the autonomy of will as well. Shares are a kind of property, which can only maximize its value during circulation, and to prohibit the transfer of shares will lead to the retrogression of property, and prevent the improvement of property, so as to impair the public wealth. Therefore, it is certainly very reasonable for the company law to adopt arbitrary norms of transferring the shares of a limited liability company.As for the Chinese system of transition, the establishment and development of the market should be improved by the establishment of modern corporate system. More deductive norms and arbitrary norms, which are flexible during application, should substitute for the rigid compulsory norms, in order to return the position as private law to the company law. Therefore, corporate charter that mainly embodies the shareholders'will should become the live soul of corporate autonomy. |
PDF Full Text Request