Study On The Setting Up Of Mandatory Norms In Company Law

The mandatory norms in the company law are important contents in the field of company law.The study of its establishment is of great significance to clear legal consequences of violating the provisions.The mandatory norm in the law of a company refers to the legal norm that the legal consequences of the desire will be blocked without the choice of the parties,which can be directly applied and can not be changed or excluded.One point to be explained is that the "mandatory norms" of this article are two different appellations under the connotations of the "strong norm" in Germany and the Taiwan region of our country.The author respects our country’s legislative habit and chooses the term "mandatory norm".Because the company law can not directly solve the problem of defining the standard of the type of company law in the academic circles,the author explores the problem of solving the difficult problem of the identification of the mandatory norms of the company law by the type division basis,the semantic recognition as the auxiliary,and the "longitudinal" identification method determined by the value judgment.According to the comparison of the contents of the articles,we know that first,the public law property of our company law is still strong,and the mandatory norms are both universal and focused,mainly in the areas of procedural problems and the protection of the rights and interests of small and medium shareholders.Secondly,the arbitrariness norm of company law is increasing,and the trend of mandatory norm transformation is obvious.Therefore,is there any reason to believe that the mandatory norms in the company law will eventually be replaced by arbitrariness norms to suit the general trend of corporate autonomy?The author’s answer is negative.The limitation of the company contract theory and the role of the mandatory norm itself in the company law can be used to prove the rationality of the existence of the mandatory norms.The problems of information asymmetry,the uncertainty of the articles of association,the lack of public products,the non innovation of the articles of association and the easy revision of the speculative articles of association prove that the arbitrary norms can not guide people’s economic activities well,and the mandatory norms can promote theresponsibility of the social responsibility and protect the small and medium shareholders,especially by the state coercion.The interests of creditors and the complete company law require mandatory norms and arbitrary norms to complement each other.Finally,how to set up mandatory norms.The author holds that,first of all,there are limitations in the classification of types,and there is no absolute criterion for dividing the standard.However,the relevant principles can still be summarized as the basis of value judgment.For example,we should respect the mandatory rules of company law,set the purpose principle,and distinguish the principles of company type.It is applicable to the relevant provisions in the company law.For example,the provisions on the transfer of shares in a limited liability company should be refined,and the provisions should be revised to "the provisions of the company’s articles of association stipulate otherwise in the case of no violation of the above provisions";the related transaction system should set up a procedural compulsory standard to ensure the implementation,and the relevant provisions should be amended to "be independent".In the case of the written consent of the director or over half of the general meeting of the shareholders,the controlling shareholder of the company shall not use the relationship to damage the interests of the company."The cumulative voting system should be changed from the arbitrary norm to the mandatory norm.