Research On The Restriction Of The Constitution Of Company Limited Stock Transfer

The fourth paragraph of Article 71 in the Current "Company Law" entrust the Articles of Association autonomous powers on the equity transfer, which means articles of association may get out of the "Company Law" established rules, in line with their own needs to make provisions for the equity transfer, only for this one in the articles of association of the equity transfer may otherwise specified without other contents, which makes no other reference can be based upon the class of matters specified but according to their interests and needs and to develop a few in practice because of the unknown boundaries of the "Company Law".This paper attempts to sort out the problems arising in such disputes, in order to be able to put forward a reasonable solution to the problems. And this paper is divided into four parts except the introduction and conclusion part.The first part is about the institutional framework, a limited equity transfer, which decomposes the existing legal provisions, and points out that lack of maneuverability, the legislation on charter restrictions is vague.The second part is about the company’s articles of association restricted the practice of equity transfer type. In view of such disputes, the writer collects 15 judgments of documents. By analyzing the existing equity transfer disputes, the provisions of procedural matters stipulated in the articles of association of the company is divided into equity transfer and disposal of equity of conditions, besides some company’s articles stipulate the association of the company prescribed transfer procedures as well as the provisions of the specific conditions of punishment. What’s more, the punishment of equity conditions can be divided into the equity transfer object requirements, priority rules, conditions of the defective share transfer restrictions and the reform of state-owned enterprises of ESOP special provisions, each class of them in judicial practice will occupy an important position. There are many issues worthy of further study and discussion.The third part is about the conflict of the company’s articles of association limit the transfer of shares and the company’s basic principle. So the author summed up common problems on the basis of these specific judgments, the followings are the mainly common problems : 1. The articles of association of the company limited the nature of the equity transfer is difficult to determine; 2.The conflict of the restrictions on the transfer of equity and equity transfer, the articles of association of the company, and free disposition principle; 3. The conflict of transfer of equity transferee; 4. There is a deviation existing the fixed equity transfer subject qualification of the company charter; 5. The priority of the exercise restrictions; 6. There are special problems during SOE reform period.The fourth part is about the perfection of the rules of the share transfer of limited company. The author thinks that the articles of association of the company are the unification of the contract and the standardization of autonomy. There are different understandings of the contents and procedures of the articles of association. Meanwhile, considering people and desirability, it shall try to balance the interests of all parties in the formulation of the articles of association of the company, and under the guidance of the connotation spirit of company law, specific provisions shall be made on procedural matters and punishment conditions.