| There are more or less restricted in the transfer of shares in limited liability companies, whether they are the countries or regions of Anglo American law system (common law) or the countries or regions of continental law system (civil law). Just because of different legal traditions and the economic law and policy, the the extent of limitation varies in different countries. The legislation of some countries or regions does not directly make restrictions, but to the shareholders’ discretion whether to make restrictions by the articles of association or do not limit. Some countries or regions directly make the limit in the form of legislation. China experienced the change from the statutory limit mode to the complementary limit model of articles of association of "company law" in 2005. At present, as specified in the provisions of the articles of association of the equity transfer, the provisions of the content seem simple, but in the judicial practice, because of different people’s understanding, they may lead to differences and disputes in the application of the clause in the equity transfer, different verdict may also occur. Some scholars put forward that, at present, the connotation of the controversial terms and provisions in the company law should be understood with practice. The position of interpretation should be higher than the legislation theory.Based on the understanding and application of the legal provisions, this paper aims to analyze the effectiveness of the articles of association in limited liability companies on share transfer limit, so as to explore how much "daydream" space the "otherwise specified" of the articles of association of transfer of restricted shares may leave to the company or to the shareholders.The main content of this paper is divided into three parts.The first part is the theoretical basis of about restrictions on the transfer of shares. First of all, the paper reviews the legislative provisions of restrictions on the share transfer and the change of mode of legislation, especially the revision of the 1993 "company law" in 2005, make it possible for the equity transfer to be restricted by the company articles of association. In addition, the analysis of the limited liability company "partners" and the theoretical basis for the restriction of regulations provided by shareholders’ autonomy are to prove the legitimacy of restrictions on the share transfer.The second part is about the different legal basis at different stages of the articles of association of the transfer of restricted shares. First of all, by using the judicial practice cases, the author summarizes several forms of the statute of limitations, including restrictions of forced transfer on the initial articles of association, and restrictions of prohibition or disguised prohibition of the transfer, as well as the restrictions on the amendment of the articles of association of share transfer. Moreover, whether the initial articles of association and amendment of the articles of association of restrictions on the share transfer have different legal basis are also analyzed. Due to the different provisions of rules given by the company law in the formulation and revision on initial articles of association and amendment of the articles of association, and at the same time, because the nature of content in the articles of association is different, the principle existence of difference between the two on the restrictions of equity transfer may occur.The third part is about the empirical analysis on the effectiveness of the articles of association of the transfer of restricted shares. In this part, the author further chooses several judicial cases, combining with the effect analysis carried out by Chinese and overseas scholars, practitioners and legislative examples on the initial constitution and amendment of the articles of association of the transfer of restricted shares, reveals the effectiveness of the articles of association of the transfer of restricted shares. |
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