The Space Of Company’s Articles Of Association Autonomy

The concept of company autonomy is always emphasized since the new company law carry out in 2005, and have a wide range of publicity in academic community. Being as an important approach and way, company’s articles of association play an important role in the company autonomy, as a charter of company which adjust the relationship of organization and management in the company. Company’s articles of association has a close relationship with company autonomy, which is the necessary carrier of company autonomy, and the base of company’s establishment. While, the company autonomy is the goal and ultimately point of company’s articles of association. Company autonomy make it possible for the manager to change the company’s articles of association base on the complex change of market, making more interior rule except the company law. Allowing full play to the autonomy character of company’s articles of association. Company’s articles of association autonomy advantageous to protect shareholders’ right, especially in the circumstance of ownership separate with the management right in model company management system. Company’s articles of association autonomy advantageous to realize shareholders’ autonomy. Company’s articles of association can not only make common rule of company management, but also make rule which adjust company’s character and benefit to create individual company, allowing full play the activity of market subject.No matter from the theory of contract or autonomy to explain the nature of company’s articles of association, the autonomy of company’s articles of association should be limited. The space of company’s articles of association autonomy means it can realize autonomy in what extant, where is the boundary of company’s articles of association rule’s effect. To definite the space of company’s articles of association autonomy originate main from the need of public interest and the protection of creditor’s Legitimate interests. The company’s social responsibility require company to beyond the traditional idea of regard the interest as the only task. It emphasize to pay close attention to human’s value in productive process, and also pay close attention to the environment, customer and contribution to the society. In order to promote the development of market economy and transaction efficiency, it is important to emphasize company’s autonomy and reduce country power’s interpose, but it is also important for the safe of transaction. If we don’t limit the company’s autonomy, it will damage the creditor and trading relative person’s Legitimate interests.This article definite the space of company’s articles of association autonomy through analysis the company law. The educational circle usually classify the company law as two parts and three parts. Two parts meas classify the company law with peremptory norm and permissive norm, and three parts means classify the company law with peremptory norm, supplementary norm and empowering norm. No matter the two parts or three parts, they all classify the company law from different point of view, this article definite the space of company’s articles of association autonomy through three parts theory. peremptory norm usually don’t allow the company’s articles of association to make norm expect the company law, but it can refinement the implement of peremptory norm, it can also make more strict norm to the company law under certain conditions. But it have to accordance with the purpose of peremptory norm and outcome should be reasonable. Supplementary norm usually allow the company’s articles of association to make norm expect the company law, and supplementary norm always emerge with “ unless otherwise stipulated”. To analysis “ unless otherwise stipulated” is also the key to define the space of company’s articles of association autonomy. Firstly, this article define different subject of “ unless otherwise stipulated”, for the different of legal principle’s creation, the original company’s articles of association differ from the company’s articles of association as amended, it also differ in the legal effect. The original company’s articles of association comes out from consensus of the shareholders, and reflect shareholders’ opinions. While the company’s articles of association as amended comes out from shareholder’s meeting’s resolution with the principle of capital majority decision, reflect the meaning of company. The former reflect contract principle while the latter reflect autonomy principle. For the shareholders’ original right, for example “voting power” and “profit distribution right”, the original company’s articles of association can except the company law through “ unless otherwise stipulated”, whether it is effective for the company’s articles of association as amended make likeness setting, this is open to discussion.Next, this article analysis the content’s effect of “ unless otherwise stipulated”. For the nature different from company law and contract law, we can’t asses them as one standard, in the circumstance of company law, it is hard to measure “cheat”, ”intimidate”, ”take advantage of others’ difficulties”, “obviously unfair”, it can also affect company’s normal operation. Therefor, we have to sum up standards to asses “ unless otherwise stipulated” effect, for example the standard of shareholder equity, the standard of objective measure and equity. Empowering norm reflect most of company’s articles of association autonomy’s nature, it can not apply autonomic and function when shareholders chose them in the company’s articles of association. Empowering norm expand the choice of shareholders and escape the problem of effect and lawsuit. Through giving weight to the company, company organ and shareholders, realize the objective of company’s articles of association autonomy.