On The Autonomy Of The Articles Of Association Of The Company

The Articles of Association of the company's significance is not a word,as a company related to the establishment,composition and follow-up mode of operation of the basic documents,as a set of shareholders,promoters and other members must abide by the autonomy rules,Development plays an important role.With the "corporate modernization" concept sweeping the world,countries have been one after another to take remedial measures to gradually replace the mandatory laws and regulations,opening up a more personalized and operable rights openings,a variety of free edge in the legal company Behavior,and gradually back to the legal system track.However,the "reduction of coercion to encourage self-government" under the general trend,the company is the lack of autonomy of the Constitution of concern and attention.Resulting in the practical operation level,failed to effectively observe and implement the original intention of legislation.Some of the new laws provide autonomy for the constitution,but also for the abuse of the autonomy of authority laid the hidden dangers,and many need to be decentralized links did not reach a real autonomy.Therefore,how to follow the real path from the true sense of the company to achieve the autonomy of the Constitution is the current legal issues need to be taken seriously.The first part of this paper includes the definition and the nature of the articles of association,briefly introduces the general understanding of the nature of the articles of association,and makes a brief analysis of these qualitative views.The article argues that the Articles of Association is a normative document that is entrusted by the law and has a constitutional role within the scope of the company.It has the dual role of internal restraint and external publicity.In the internal structure of the entire company members to determine the relationship between the powers and responsibilities,the nature of the company;outside the performance of a clear written document,in the composition of the company to the status of the position,and the company set up each other.According to the definition of the autonomy of the articles of incorporation,this article summarizes the three views of the autonomy law,contract theory and the charter theory,and makes a review of the present constitution of the company statute.The second part of the paper describes the conventional content of the articles of association,explains the autonomy of the articles of association and the autonomy of the content and characteristics of the autonomy of the company's boundaries,outlined the constitution autonomy empowerment and restriction of the legislative necessity,The boundary division principle and the division standard of the company constitution autonomy and how to define the range of the autonomy of the constitution autonomy in the realistic level and the judicial level.The article pointed out that the articles of incorporation,modification and content of the three is the main content of the articles of incorporation.Restrictions on the autonomy of the constitution are due to the maintenance of the public interest,saving contract costs,taking into account the efficiency and fairness,after considering the inevitable choice.And the determination of the autonomy boundary of the articles of association of the company shall be in accordance with the principle of distinction between self-interest and other interests,and protection of public interest.Finally,the author defines the method of determining the autonomous boundary of the company's charter from four aspects: company form,national policy,fairness and efficiency,and third party's rights and interests.The third part of the paper,combined with China's current situation,analysis of the company's self-regulation of the deficiencies,and gives the corresponding countermeasures.The author argues that the most important problems in the current system of China 's corporate statute include the undefined boundaries,the complicated constitution,the absence of substantive examination,the excessive authority of self-interest and the establishment of company charter.First of all,the autonomy of the Bylaws is not a clear-cut boundary,but with the subjective and objective changes in the situation of self-movement,although the legislative intent and policy guidance in the mandatory limit the necessity of the constitution and the appropriate role of the appropriate empowerment,It is still difficult to decide whether the standard of public order and good morals is right or not,leading to the conclusion that the current constitution boundary is still fuzzy in legislation level;secondly,the stability of the articles of association is strong,and the law is uniform.Although it is easy to supervise and manage,the internal structure of the charter is very complicated,the level logic is chaotic,the aim and the convenience are not enough,the procedure is cumbersome,time-consuming and laborious.Thirdly,it is not suitable to expand the time of the autonomy of the company,and the related supporting mechanism is not perfect.It will bring many potential dangers to establish the autonomy right in the vacuum area without supervision.Finally,many companies in the early years of the company's articles of association does not attach importance,or attention but not considered,the company's charter as a fully formalized form of the task.At the same time,based on our country's law,we review the problems of constitution autonomy,such as "formalization",complicated structure and excessive self-interest,and put forward relevant countermeasure.The article thinks:First of all,to clarify the necessity of the constitution of the division of the contents of the articles of the need to be divided into two categories of necessity and necessity to form a self-government space,the company law mandatory provisions of the necessary exclusion,and then clear boundaries self-The rest are designated as relative imperatives,thereby guaranteeing the interests of third parties and the public interest.But also from the fundamental aspects of legislation,clearly defined relative to the contents of the necessary matters.Second,the division of articles of association and rules,the use of two different rules and path to be modified to distinguish between the audit content and operation of the content of the Articles of Association for the actual situation to increase the weight of adaptation to prevent "formal" phenomenon,to avoid complex Setting procedures lead to all the regulations or revision process to follow suit.Third,to optimize the audit supervision path,in the registration audit,the business sector is responsible for the charter to determine the scope of business to carry out empowerment and external publicity,Kam English law system practice,the distinction between the outline and rules,clear voting procedures,shall not be modified and The words "except the articles of association" are expressly included in the Company Law.Fourth,the correct grasp of self-interest to play and the right to close.Strengthen the legislation to restrict dividend autonomy of the company,separate the characteristics of people and the characteristics of capital cooperation,the former gives the autonomy of the constitution,the latter gives the law compulsory restraint,so as to better protect the minority shareholders and capital associated with the third party interests.Learn from foreign practices,authorized by the statute,decided to take what kind of legal representative system.Finally,perfect the practice path of the Articles of Association,correct the ideological consciousness,strengthen the combination with the corporate governance measures,synthesize the opinions of the shareholders,search for the matters of greatest concern to the shareholders,and discuss them into the articles of association.We can estimate the probability of the same kind of disputes by considering other cases before the same type of company,and then consider the way of settlement and arbitration,make it a part of the rules,and enter into the articles of association,so as to balance the interests of all parties.,The shareholders and other stakeholders to make predictable protection of the rights and interests.