Research Of The Mandatory Norms About Company Law In Our Country

The selection and setting of legal norms type is the result of lawmakers’ value. At the macro, this value will affect legislative, executive and judicial, and even the competition of law to a certain degree. At the micro, it will have an impact on the setting scale of different norms in legislation, and therefore it has important significance for the study of legal norms.The most important legal norms are divided into two types: peremptory norms and arbitrary norms. Since the focus of autonomy of private law, in private law system, there naturally exist a lot of arbitrary norms in the setting of legal norms substantive equality. But for consideration of safety and efficiency, there is still a certain amount of peremptory norms in private law. Company Law belongs to private law, this view has been recognized by scholars, but the theorists and practitioners have different opinions about the nature of company law, then lead to the proportion of peremptory norms that reflect the autonomy of companies’ participant and arbitrary norms that reflect state intervention present different state. For the definition of the nature of the Company Law, there mainly exist three different views: any laws arbitrary laws and mixing laws. Commentators in favor of the mixing laws,because of the private property of Company Law, it should be arbitrary. However, the since the development of company system, the company has not entirely private body, but has a social nature, require the intervention of the national force, so Company Law should be a mix of both, mainly are arbitrary norms. Nevertheless, the peremptory norms play an indispensable role in Company Law, they can compensate for the asymmetry of market mechanisms, prevent opportunism and form a reasonable cost-sharing mechanism. The meanings of commentators study of peremptory norms are to explain that the peremptory norms is indispensable for Company Law. But this does not explain that peremptory norms can freely expand. Company Law requires peremptory norms only to provide a self-governing "rules of the game" for the company, so it is necessary to set a standard for the existence of peremptory norms in Company Law. Commentators have came up with the macro standard for the setting of peremptory norms in Company Law: nature of the company, external affairs and regulatory standards. And further proposed the micro standard: that relates to the specification of information disclosure, controlling shareholders, directors and managers and other principal part’ specification of fiduciary duties and relevant specifications of proceedings and legal responsibilities should be set to peremptory norms. In addition to follow these macro and micro standard, the setting of peremptory norms in Company Law need to consider other factors, such as setting up peremptory norms in Company Law in a country should try to balance the relationship between state regulation and marketmechanisms; Legislators in the formulation of Company Law in the general objectives and specific targets will also affect the number of peremptory norms;involved the interests of others is also the factors that legislators have to consider. In addition to set a series of standard for the exist of peremptory norms in Company Law in the judicial process, how to identify peremptory norms has became a difficult problem in theorists and practitioners. On the basis of relevant identification theory by domestic and foreign scholar, this article tries to put forward the basic path of identification: to regulate typed as the basis, to consider language as the assist, to use objective value for comprehensive measures, to expect these studies can provide some valuable suggestions for practice of Company Law.Study of peremptory norms in Company Law is bound to involve all aspects of the problem In this paper, we use variety of methods for example the law and economics analysis,comparative analysis and theoretical research method, summarize, analyze the current situation of legislation of peremptory norms in Company Law, point out some limitations,such as: set the Ltd in the front, and stock company behind it in the legislative framework, and clearly defined the stock company refer to the Ltd, its legitimacy is questionable. Because no matter the number of peremptory norms or arbitrary norms in stock company are more than Ltd. Our countries’ enactment about the structure of Company Law and the provision about refer to application, not only inconsistent with the foreign legislative trends of Company Law,they may also result in legal loopholes and apply difficult issues. On the details of the deal of peremptory norms in Company Law, it remains to be "polished". This is mainly reflected in China’s Company Law exist legislative terminology confusing issues to a certain degree. In the future, Company Law’ modify direction in our country should be adjusted from the two aspects, focusing on the correct of legislative framework of Company Law and the traditional deviation of referring to application and unite the usage of the legislative language of peremptory norms.The most important in Company Law is arbitrary norms that reflect state intervention present different state and peremptory norms that reflect the autonomy of companies’ participant. For consideration of the level of market development in particular period, both transition should also be gradual. In reality, these two specifications will exist defects more or less. Therefore, our countries’ future Company Law should be able to increase the amount of some of the default criterion reconcile both of them. In a word, our countries’ future Company Law in one hand should always uphold the basic concept of legislation that Company Law is any law essentially, on the other hand, we should also accurately analysis the market environment, can not be blind deregulation.