Research On Applicable Space Of The Articles Of Association

The Articles of Association of the company, which completely stipulates nature of the company, scope of operation, organizational frame, mode of operation, the allocation of rights and obligations and so on, runs through the whole process of the company's establishment, change and its termination. It is the most basic behavior criterion in the company. Since the 1980s, American scholars began to study related problems on the subject, and generated a large number of researches. Chinese scholars also studied the relationship between the Articles of Association of the company and company law from both macroscopic and abstract viewpoints, but they lacked a concrete analysis of applicable area of the Articles of Association in company law. With the introduction of the new Company Law, the entire field of company law is to achieve a return to self-government of private law. In such a situation, our country's charter has been free from the standard format of the old company law. And very extensive rights of autonomy and broader applicable space were also given. Faced with various specified terms in company law, the Articles of Association of the company needs to identify its applicable space and makes it clear that which rules can be stimulated by the charter, and which ones can not. They are bound to relate to the issue of normative analysis between nature of the company's charter and company law. Based on the analysis and opinion of scholars from home and abroad about peremptory norm and arbitrary norm, distinction standard can be set up. As a result, it also will make the scope of application of the company's charter clear.This thesis is divided into four parts.The first part aims to define the concept and nature of the Articles of Association of the company. Domestic and foreign scholars' main opinions about the concept of the Articles of Association of the company have been cited. On this basis, the thesis brings forward its definition on the Articles of Association of the company. The paper has also discussed four main viewpoints relating to the nature of the Articles of Association on academic principle, including contract doctrine, charter doctrine, the doctrine of law of autonomy and legal doctrine of right. And it also puts forward its understanding of the company's charter. The fundamental nature of our country's company charter should be regulated for company's self-government, and display a certain degree of contractual at the same time.The second part is how the Articles of association of the company apply to the company law. There are two says about company law norm, arbitrary and mandatory. The paper separately sketched the cause and different characteristics of these two theories, and talked about the development of company law norm in our country. Company law norms which can be seen in our country are the combination of both mandatory and arbitrary. As a result of the characteristic of the company law norm, this paper separately analyzed how to correctly apply peremptory norm and arbitrary norm, combining with articles of company law.Part III, border dispute about the boundary of peremptory norm and arbitrary norm in company law will be discussed. Many scholars from America or Britain, Professor Cheffins, Professor Eisenberg, Gordon, and some homeland scholars all have put forward their own way to distinguish peremptory norm and arbitrary norm. The paper thinks we should classify the company law norm as a whole so that the issue what contents company charter can regulate can be ascertained. Meanwhile, in the fuzzy zone of the micro-rules border, the author analyzed some individual cases to establish more detailed rules in order to give a supplement on the rules of the macro.Abstract analysis of applicable space in the Articles of Association will be mainly covered in part IV. Learning from both home and abroad scholars' approach to the boundary distinction between peremptory norm and arbitrary norm, the paper gives three criteria about the border between peremptory norm and arbitrary norm, that is, the distinction between structural rules, distribution rules, and the rule of faith; the distinguish between closed companies and public companies; the distinction between the initial charter amendment and follow-up charter amendment. At the same time, it combines with relevant cases during the practice of the company charter to analyze and deepen the recognition of the theory. In the fuzzy zone, the paper gives a supplement to the abstract rules by exploring the historic tracks of legislative intention and legislative alteration.