Research On Identification And Judgment Of Mandatory Rules In The Company Law

As an important part of Commercial Law, Company Law adhering to the duality of commercial law, optional norm opposites to the mandatory norm, meanwhile coexists with the mandatory norm that is the expression of the Company law’s norms. However, the nature of the company law’s norm determines the validity of the contracts in violation of mandatory norms. And the validity of the contracts is the research topic of Civil academic, which directly determines the company participants, according to their own autonomy, can maximize their own interests or not. So, how to identify which company law norms are Mandatory norms and how to determine the effectiveness of the company contract in violation of the Mandatory norms is the biggest problem of current theory and judicial practice. The purpose of this Article is to solve this problem.Identifying Mandatory norms of the company, the traditional identification methods commonly used types of semantic recognition and company law norms of recognition, however, these two approaches are insufficient accuracy of defect exists, and both are identifying ways of representation. By analyzing the comments of these two methods, this article provide with an essence way to identify the mandatory norms, namely value analysis. What’s more, provide with a correct identification path of mandatory norms, that semantic recognition is based on the type of company law norms recognized as an auxiliary to value analysis to identify the path of the decision. Mandatory norms of the Act to identify the ultimate goal is thus to determine the effectiveness of breach of the mandatory contract specifications. After further analysis of existing legislation through the legal validity of rank and distinction between norms and management norms of judicial practice determine the effectiveness of the lack of substantive significance contract, proposed contract determines the effectiveness of the company’s essence method, the value that is under the guidance of the principle of proportionality measure. And describes how the validity of the contract using the principle of proportionality based on the value of a measurable way to determine violations of the Act of mandatory norms.In addition to the introduction, the paper is divided into four chapters:The first chapter, "Company Law and the Modesty nature of mandatory norms ": This chapter is mainly through the controversial nature of the Act are discussed, namely the Act is on private or public law; Companies Act or any mandatory law is Comment on this historical analysis method classic thesis, summed up the essence of the Act is private property but also have public law; company law to arbitrary norms-based, supplemented by the conclusions of mandatory norms. This chapter studies the Act mandatory norms of the Act from the perspective of empirical analysis of the legal norms of substantive law in the microscopic structure of the Act that the analysis of mandatory norms mandatory elements. As a private company law, the mandatory norms is not mandatory to achieve by the overall negative effect, but one or more elements of a legal relationship between subject, object or behavior forced to achieve mandatory effect. It also analyzes the Act of mandatory norms exist in the Act range. To conduct research on the Company Law mandatory norms from an empirical perspective, in order to identify the path constructed below the mandatory norms and determine violations of mandatory norms of validity of the contract to provide empirical evidence.Chapter 2, " mandatory norms of the Act identify the path analysis":This chapter mainly through traditional means of identification of the semantic analysis of the Company Law Review type of mandatory norms of identification, noting that the traditional semantic recognition of uncertainty, not only in specification of the Act has prompted the identification of words and suggestive language of bias exists, but more important is not to regulate the Act does not have the presence of a large number of tips and hints language word for accurate identification of legal norms, while noting that the Act type of defect identification and significance. Mandatory norms of the Act and then summed to identify the path:that is based on semantic recognition to the Act as an auxiliary type, value analysis decision.Chapter 3, " the effectiveness of the existing legislation on corporate contracts lacking in substance determination guiding significance ":This chapter is mainly to illustrate the effectiveness of the current legislation in violation of the Act on the contract determines the lack of mandatory norms guiding the current legislation in violation of the law by bit order to determine the effectiveness of the company to determine the distinction between contract and by the effectiveness of the regulation and management of the company to determine the validity of the contract specifications. Through these two methods of analysis on the one hand to explain to determine validity of the contract in violation of the Act of mandatory norms of practical needs, the other is through the analysis of these two approaches lead to the next chapter of determining the effectiveness of the company’s substantial methods.Chapter 4, "the essence method to determine the efficacy of company contract which in violation of the Mandatory norms-value measurement":This chapter discusses the essence method of determining the company contract’s efficacy, namely value measurement method. This value is not measured by the judges feel free to law, but in the value of measure under the guidance of the principle of proportionality. And pointed out how the value based on the principle of proportionality to measure the validity of the contract in violation of Mandatory norms. Namely through the six elements of the investigation, the judge make a final measure of value. Finally, this article provide with a case to demonstrate the value in practice of this method.