Research On Restrictions Of Shares Transfer In The Charter Of Limited Liability Company

Restrictions of shares transfer in the charter of limited liability company is not an new issue.since the amending of the company law in 2005 stipulates for " company rules has formulary except additionally".there arises many correlative disputes for the rule for equity transfer of limited companies has became arbitrary norms.The effect confirmation judgments of the same or similar charter will be different from the different aspects of Shareholders' rights protection or corporate governance.The indeterminacy has damaged to the judicial authority and has brought unstable factors for the transaction of company.The reason of judicial judgment deadlock is for lacking the research of the institutional basis behind the various rights.This text will demonstrate the legal basis,legitimacy and boundary of the restrictions of shares transfer in the charter of limited liability company by the means of theory carding.Further researching on the validity of the contract which violates the provisions of the articles of association.The first part of this article classifies the restrictions of shares transfer to define the scope of this discussion.And presenting the details,the focus and controversies of the case of Share transferring of ZhuZhou Architecture Design Institute,Pointing out the core of this article:the legal effect of charter which stipulates the restriction of shares transfer and the legal effect of contract which violates the regulation of the charter.The second part of this article discuss the theory of stock equity,the freedom of the stock rights' transfer to certify the legitimacy on the basic theory of civil and business.Through illustrating the basic meaning of the notion about the autonomy of company charter and"company rules has formulary except additionally" to justify the legitimacy from the material law.The third part of this article contrasts the theories of co-personal and co-funding,majority consent and party autonomy,equality of shareholders and equality of stock rights to balance the company independent personality and protection of minority shareholder.The change of corporate capitalism,the absolute freedom in joint-stock company' share transfer,the light touch of judicial judgment all need the reaction of company's internal systems.The fourth part of this article delimits boundaries of the restriction.From the aspect of company's benefit to judge the reasonable objective standard.We should particularly notice the time-specific background in china.Basing the standards of party autonomy and just price to justify the fairness of the restriction.The fifth part of this article discuss the validity of the contract which violates the provisions of the articles of association.According to the corporate law nature of this contract,we divide the problem to two parts:the validity between company and shareholders,and the validity between shareholders and the assignee.Adopting the effectiveness appraisal system of Contract law to justify the validity of the contract,but the effect doesn't restrain the company and other shareholders.The appraisal rights of the dissenters is the exit mechanism for dissenters,and the Contract law has remedy mechanism for the assignee.In the end,author use the the way of Problem list to show the main points of the article.