The Effectiveness Research On The Company’s Articles Of Association Limiting The Transfer Of Stock Right

In order to comply with the modern company’s development demand, in initiates and encourages the company litigant investment and under the autonomous management environment, our country in2005has carried on the large scale revision to "Law of corporation", increased "the articles of incorporation to the Limited company stockholder’s rights transfer rule to have the stipulation in addition to the stockholder’s rights transfer, stipulated from it", enabled the company litigants to enjoy the elimination legal limit explicitly, first was suitable the regulation related stipulation the autonomous right. The company may aim at own different situation to formulate the stockholder’s rights transfer qualifying clause, the independent weight sells the shareholder and the surplus shareholder benefit is contradictory. However, because the stockholder’s rights transfer involves shareholder’s fundamental interests, in reality has the dispute easily originally,"Law of corporation"72nd increases the regulation autonomous right in the original method rule, although is the legislative progress is also the development necessity, but causes the stockholder’s rights transfer the dispute situation to be more complex and the agglutination, because the company litigants very possibly surpass the legislator "the benefit to be balanced" anticipated that formulates is completely different with the legal limit provision rule. The articles of incorporation have in the stockholder’s rights transfer question’s boundary in a big way? Potency how? These questions need the scholars to make the value judgment once more through the practice research, thus for practice solution new condition under dispute. This article made in view of the articles of incorporation is different divides into three kinds in the legal stockholder’s rights transfer rule situation union practice case to study. This article subject therefore divides into three parts.The first part is a Constitution and an overview of the basic concepts of equity and property, which is the basic theory needed to research this subject.The second part is the articles of incorporation "forbids" or "forbids the stockholder’s rights transfer potency analysis in disguised form". The author carries out official duties the judicial revision value orientation angle saying that thought that the legislator intends to encourages to invest,"forbids the stockholder’s rights transfer stipulation to have completely" disobeys the revision the value orientation, therefore is invalid. The young shareholder benefit’s angle says from the maintenance, the regulation stipulation very possibly becomes the major stockholder to suppress the young shareholder’s method, young shareholder with difficulty "withdrawal", to achieve the relative advantage balanced, should also think that "forbids the stockholder’s rights transfer provision is the invalid stipulation completely". The author "will also forbid" the situation has carried on the concrete classification, when the regulation true limit stockholder’s rights cause the shareholder transfers completely with difficulty only then to recognize stipulate for this reason invalid, if may realize the internal transfer, will not be suitable "will forbid or forbids to recognize invalid in disguised form".The third second part is the articles of incorporation "the compulsion" the stockholder’s rights transfer potency inquisition. The author obtains through the articles of incorporation nature’s discussion, the regulation contract causes the articles of incorporation to take between litigant’s arrangement to receive the deference, then the primitive regulation "the compulsion" the stockholder’s rights transfer’s stipulation speaking of the primitive shareholder is effective. But as a result of revision regulation particularity, articles of incorporation when revision will have surely is different with the primitive regulation formulation content limit, should include do not eliminate the shareholder willfully already the right, only if his oneself will give up or the agreement. Obtains through the stockholder’s rights nature’s research, when revision regulation "compulsion" stockholder’s rights transfer, casts the opposite ballot the shareholder may not its restraint. But add-on buys stock east speaking of the company, regardless of the regulation is primitive or revises, so long as occurs before it joins the company, joins the shareholders to receive the articles of incorporation restraint. This explained the articles of incorporation contract nature exactly.The forth part is the articles of incorporation aptness limit stockholder’s rights transfer potency. So-called "the aptness" is refers to must "forbids or the compulsion" under the violent situation, the regulation makes is different with the legal limit content situation. The author through the72nd provision’s attribute analysis, obtains, regardless of the articles of incorporation are strict in extend in the legal limiting condition must be effective.