The Effectiveness Of The Forced Equity Transfer Clauses In The Articles Of Association Of Limited Liability Company

Company autonomy is a distinct theme of corporation law modified in2005,Thecompany’s articles of association is the principal means of company autonomy,Due tothe limited liability company have characters based on shareholders,Company lawgives it greater autonomy.Company law provisions where the articles of associationof a company stipulate otherwise on equity transfer, such stipulations shall prevail inrespect of limited liability company shares transfer,Fully reflects the company’sarticles of association autonomy.During the practice,companies and shareholders donot have a unified understanding of the terms and conditions stipulated by theregulations of the company,Some of the company’s articles of association prohibitsshareholders transfer of equity,Some of the company’s articles of associationrestrictions shareholders transfer of equity,Some of the company’s articles ofassociation forces shareholders transfer of equity, the effectiveness of these terms andconditions of the articles of association, different views in the academic circles andjudicial practice.This article mainly analyse the effectiveness of the clause to thearticles of association about specific circumstances forced shareholders transfers theirequity.In order to solve this problem in the judicial practice provides a train ofthought.This article includes introduction, text and conclusion,the text consists of fourchapters.In the first chapter,the article first put forward when the force existing in theequity transfer clauses in the articles of associationin in the form of case encounteredin the judicial practice in accordance with the time,the courts’ judgments and theirreasones,to summarizes the cause of this problem,and analyzes the equity as propertyrights,equity principle of free transfer should be respected,but this kind of freetransfer is not without boundary.Due to the limited liability company have charactersbased on shareholders,equity transferring is also should be limited to a certainfreedom.Concrete manifestation in corporation law allows autonomy to the articles ofassociation of the company.So the company’s articles of association can be made to the equity transfer is different from the company law,but the limit is also not withoutborders.And analyse the legitimacy basis compulsory equity transfer by the articles ofassociation and its boundaries.In the second chapter,the paper introduces the different views and theoreticalbasis about the validity of the equity transfer clauses in the articles of association of alimited company between Scholars and judges,and statement of the author’s view ofthis problem.For the effectiveness of the forced equity transfer clauses in the articlesof association of company of limited liability, should not be general qualitative,whileshould be based on specific terms the nature of the analysis of the articles ofassociation of compulsory equity transfer provisions to carry out specific analysis onthe effectiveness of the shareholders.In the third chapter,this chapter is main body theory part of this article,firstanalys when affirm the effectiveness of the provision in the articles of association of acompany,Should not be in the nature of the company’s articles of association on thebasis of qualitative analysis,and should analysis of the company’s articles ofassociation in terms of different nature.In the first part of the chapter,provisions ofthe articles of association were typed analyzed,work out a conclusion that differentarticles should follow the effect of different rules.In the second part,initial andrevision to the articles of association of the company to the company’s articles ofassociation of different legal theory are analyzed,reach a conclusion the originalnature of the company’s articles of association is a contract of the company’s articlesof association,the terms of the original articles of association will be effective to allthe shareholders.Because of the capital majority rule is adopted in the revision of thearticles of association,when analys the effectiveness of the terms of the revisedarticles of association,first of all,to make a qualitative of the nature of the clause.Inthe third part,through the analysis of paragraph4of article seventy-two of thecompany law,obtain a result that the equity transfer shall be specified in the fourthparagraph is rules of equity transfer procedures,when dispose equity shareholdersshall respect the parties intend to.Last,the forced transfer of equity transfer clauses inthe articles of association of a company is a disposition to equity,so its effect on theshareholders should consider the intention of the parties. In the fourth chapter,this chapter is mainly on the basis of the theory in the lastchapter,the validity of the equity transfer terms of the case of different circumstancesforce under different conditionsIn in the first chapter are analyzed. Based on theabove analysis,In the first case that compulsory equity transfer clause in thecompany’s initial articles of association is binding to all the original shareholders.Inthe second case that analyse the effectiness of equity transfer provisions of revision ofthe articles of association in the process of firm survival should combineshareholder’s intention.In the third case that the effectiveness of the company’sarticles of association already exists in terms of compulsory equity transfer to thecompany’s shareholders who through equity transfer join the company.Because theshareholders have agreed to join the company,we can presumpt the shareholder willto accept the constraint of the terms and conditions.For the equity transfer price,lawdoes not have specific provision, the equity transfer price is mainly determined thenegotiation between the parties.