Research On The Fourth Section Of Article 71 Of Company Law

Share transfer is an important feature of the modern corporation,free transfer of shares is an important reason for the company to exist,it is exeactlly the free transfer allows the company to dynamically surviving and developing.However, due to the closed nature of the limited liability company,more and more countries limit the transfer of shares as a character of limited liability company,this can be seen in many countries' corporate law and practice.The Article 71 of our current Company Law also reflects this character,and its fourth section stipulate that “if there is other stipulate of the transfer of shares in articles of association,comply with that stipulate”,means that it can be sitpulated different transfer of shares rules from the previous three sections in articles of association,this reflects the respect of lgislation on the idea of company autonomy.But there is a variety of cases surging out in practice,the validity of these "personalized" provisions became the point of contentionn in theorists and the difficulties in justice practice.Therefore,I exercise to collect and analyze the real cases in practice and use theoretical knowledge to judge the validity of the terms of “other transfer of shares”,to put forward reasonable judgments of validity and the case analysis method, and hope to make a effort on the unify of the judicial adjudication.(This article is mainly analysis on the fourth section of Article 71 of Company Law,this term is belong to the chapter of the limited liability company,so this article are all discussed about limited liability company,not include Stock Company.)This paper is divided to four parts.As the first part of the first paragraph of the article,it is mainly explan the Fourth Section of Article 71 of Company Law.I am first introduced the domestic scholars' different interpretations of this provision,then analyze the vulnerability of its interpretation and put forward my explaination,that is Company Law does not limit the range of transfer of shares in articles of association.The second part mainly introduce the domestic scholars' view on the validity standards of “other stipulate of transfer of shares” in articles of association.,however,this standard is not uniform and mostly are legal principles,there are different views among scholars on the content of the legal principle;This section also introduce the stipulate of foreign law on the validity standards of “other stipulate of transfer of shares”in articles of association,some national legislation proposed judgment standard,but it still need to analysis the merits of cases.Therefore,I advocate that in the case of the missing legislation,it is need to collect,analyze,summarize the cases in practice in order to put forward reliable and meaningful judging method and basis.The third part is the validity judge on“the other stipulate transfer of shares”involving substantive rights,based on the analysis on these three major problems: prohibiting the transfer of shares, forced the transfer of shares,sitipulate the price of the transfer of shares in the articles of association,and distinguish different situations in each issue,and explain the validity of the restrictions on the transfer of share one by one,and summarize the validity of transfer of shares with each type at the end of every section,to put forward the methods and basis of validity judgements.The fouth part is the validity judge on“the other stipulate transfer of shares”that not involving substantive rights,mostly,this type of stipulate is effective,but it should not be generalized.When the procedural provisions of transfer of shares affect the achievement of certain substantive rights of shareholders,the validity of”the other stipulate transfer of shares”ineed to be careful analyzed.The fifth part is my advice to legislation and the administration of justice.I advocate that at the legislative level,we should improve the complementary mechanisms judge on validity and balance the interests of all parties.On one hand,we should innovate the exit mechanism of shareholders and improve the share buybackrequest right of dissenting shareholders;On the other hand,we should improve the delisting system of shareholders,and provide legal remedies procedures for the delisting shareholders;At the administration of justice level,we shall respect the company autonomy, encourage remedy the invalid "the other stipulate transfer of shares".