On The Otherwise Stipulated Terms In The Articles Of Association

The otherwise stipulated terms in Company Law reveals liberalism of this law best. By set the rules relying on operators’ own willings, the otherwise stipulated terms makes it possiple for them to replace and eliminate regulations in Company Law so that to achieve the goal of autonomy. However, in Company Law, there are no further rules on situations when the otherwise stipulated terms are effective, or clear standards of their rationality, both of which lead to disputes on the effectiveness of the articles of association and its terms. Because there are no clear claims on confine and effectiveness of the otherwise stipulated terms, there is also no single standard to the judge relevant cases. The judgment may accord to theories of company contrat, principles of Company Law and pinciples of protecting shareholders’ rights. As a result, the liberty of the articles of association has been ignored, and company autonomy has been in a dilemma as well.Based on the spirit of company autonomy of the otherwise stipulated terms, this thesis tells different forms of the autonomy of the articles of association, makes further explainations on the otherwise stipulated terms and clarifies the nature, functions and values of the otherwise stipulated terms. Besides, by analysing the disputes on the effectiveness and their negative effects in operating companies, this thesis tries to figure out the reasons of the disputes. What is more, by analysing the traditional judgment system of the effectiveness of the otherwise stipulated terms and finding its shortages, this thesis tries to reconstruct the system. At last, taking the development direction of Company Law into consideration, this thesis points out the possibility to expand the scope of the otherwise stipulated terms in Company Law, and gives suggestions on confines of the autonomy of the articles of association.This thesis is divided into the following four parts:The first part is about the autonomy of the articles of association, which is based on the company autonomy. Firstly, on the foundation of the autonomy in private law, this thesis analyses three levels of articles autonomy, which are selection mechanism, accountability mechanism and protection mechanism of articles autonomy. Secondly, by classifying the terms on company autonomy in Company Law, it finds that the otherwise stipulated terms are not the only regulations about company autonomy, which means the otherwise stipulated terms are just on kind of company autonomy.The second part confines the otherwise stipulated terms and analyses the disputes of those terms in practice. Firstly, it explains the otherwise stipulated terms in aspects of semantic explanation, historical explanation and systematic explanation, and points out the values of introducing the otherwise stipulated terms into Company Law. Secondly, it points out that there is no unified explanation of the otherwise stipulated terms or clear confines of its effectiveness, which are the reasons of the disputes. Besides, it takes some relevant cases as examples of the disputes leaded by the otherwise stipulated terms in practice. Thirdly, this thesis analyses the reasons of the disputes in aspects of rules and regulations of Company Law, relationship between shareholders and national regulation and market freedom, and points out it is important to clarify the otherwise stipulated terms.The third part points out the shortage of the traditional judgment of the effectiveness of the otherwise stipulated terms, and suggests to reconstruct the system of the judgment. Firstly, it analyses the shortage of the traditional views of contracts and regulation nature. Secondly, it analyses the benefits of shareholders and the company who are benefitting from the otherwise stipulated terms, and figures out a specific standard for judging the effectiveness. Lastly, it gives a system for judging the effectiveness in aspects of the procedure of setting the otherwise stipulated terms, profit distribution and its main bodies.The forth part gives suggestions to perfect the otherwise stipulated terms in Company Law. Firstly, this thesis points out the necessity of setting limitations on the otherwise stipulated terms. Secondly, it suggests to expand the scope of the otherwise stipulated terms in Company Law. At last, it points out confines that company autonomy can be effective when there are no rules and regulations in Company Law.