Reflection On Deficiency And Alienation Of Autonomy Of Corporate Articles Of Association

This dissertation aims at the deficiency and alienation of autonomy of the company’sarticles of associations. It starts with two aspects: the insufficiency of the autonomy and thealienation of the autonomy, and then goes to discuss the notion, characteristics and functionsof articles of association as the supreme document within the undertaking, especially thefunctions to devise a well-functioning, highly efficient and individually characterizedcorporate structure. Despite the fact that it never belongs to law, corporation by-law can bedeemed as the charter of the company. Corporate law should make accurate division amongits jurisdiction and the one of the articles of association. Relevant matters which will besolved better individually should be left to the competence of the company, for the fact thatthe shareholders of the company can response to the quickly changing market more rapidly.This is for the harmonized balance between law and the corporate by-law. Based on relevanttheories and current reality, this paper tries to look into the reasons of the deficiency of theautonomy of the company, suggesting that corporate law should insist on the priority of thevalue of freedom over the value of fairness and the priority of autonomy over heteronomywhile differentiating between self-benefits and other-benefits. Afterwards, the regulation ofthe articles should be distinguished into three categories: the confirmation regulations, theoperation regulations and the indemnification regulations under Limited Liability Company orJoint Stock Limited Company. With these differentiations, it can be analyzed when to applyexclusive competence, shared competence or supplementary competence under certain kind ofregulations of specific corporations. After the observation of the boundary of the autonomy,this paper tries to discuss the possibilities to solve the aforesaid problem. Firstly, to deal withthe insufficiency of the autonomy, shareholders should realize that articles of association arethe tools to achieve a personal system within the company which will contribute to thedevelopment of the company in the cut-throat competition in the current crisis. Secondly, thealienation of the autonomy requires the corporate law to build up a boundary of the autonomyand perfect the protection of minor shareholders and other subjects, in case that the articles ofassociation will become a monster without a cage.