Research On Shares Transfer Of LLC Within The Autonomous Company Constitution

The Company Law of the People’s Republic of China amended in2005formulated the internal and external conditions about shares transfer of Limited Liability Company(for short LLC),and given the company constitution more extensive rights at the same times.This provision improved the status of the company constitution and realized the limit legislation mode transfer of LLC from legal limit mode to the constitution limits.The important shift means that the shares transfer of LLC restrictions can be much more diverse.paragraph4of Article72in The Company Law of the People’s Republic of China has demonstrates the specific law on share transfer arrangements,but not limited to the manner and form,made by a company itself.The effect range of modified company constitution limiting the shares transfer which has sparked controversy.The theory and practice each have differences,in the long run,it may form a new social unstable factors. This paper’s main body is divided into five aspects.Part Ⅰ is the cases and the raised problems. This part introduced two typical cases,and raised the current company law’s problems in the judicial practice.The thinking is:what is the property of Article72in The Company Law of the People’s Republic of China?What is the efficacy of modified company constitution limit the shares transfer?Does the autonomous Company constitution to restrict share transfer has certain boundary?Part Ⅱ is theory dispute and practice differences.This part introduced the theory and practice each have differences on the efficacy of autonomous Company constitution to restrict share transfer.The effect range of modified company constitution limiting the shares transfer also exist dispute. The theory and practice have great differences for analysis methods and conclusions.All of these issues,in the final analysis,is to establish what kind of judgment standards which is the focus of this article below.Part Ⅲ is the legitimacy analysis of autonomous Company constitution to restrict share transfer.Article72in The Company Law of the People’s Republic of China comes to different conclusions from the angle of mandatory rules and default rules.Through the analysis,we view it as default rule. The next is to analyse the legitimacy analysis of autonomous Company constitution to restrict share transfer.It includes legal basis, theoretical foundation and foreign legislation comparison. Based on this,author will explore the effect range of modified company constitution limiting the shares transfer.Part Ⅳ is to explore the effect range of modified company constitution limiting the shares transfer.This argument involves the capital majority rule which is abided by modified company constitution and protection of minority shareholders’ interests.Through the analysis,we confirm the capital majority rule should be observed.we could not in order to protect the interests of small shareholders total or partial negative the effect range of modified company constitution.Modified company constitution which is operated under the capital majority rule,should be treated the same as the original company constitution.Part Ⅴ is about the certain boundary of autonomous company constitution to restrict shares transfer.The restriction of shares transfer by company constitution of CCL is not absolute but has certain boundary.The fundamental purpose that we seek is to accurate judge the efficacy of autonomous Company constitution to restrict share transfer.In other words,it is a question about establishing what kind of judgment standard.The author list several judgment standards,such as shall not violate the mandatory provisions of law or the public interest of the society, shall not prohibit or disguised ban shares liquidity and internal transfer conditions shall not be higher than the external transfer conditions.Finally,the author inspect the cases with the given judgment standard and confirm that company constitution (even the modified company constitution)under certain conditions could force the shares transfer.The new Company Law means a new beginning.How to adjust to the development of the company practice,take the interests of all parties into account,and make a prfect balance between the autonomy of company constitution and company law will be not only the perpetual subject deserving study,but also the pursuit of Company Law jurists.