The Restriction Of Articles Of Association On The Transfer Of Stock Right Of Limited Liability Company

The restrictions on the transfer of equity in the articles of association of limited liability companies are closely related to the interests of shareholders.Article 71 of the "Company Law" is a regulation on the transfer of shares of a limited liability company.Article 4 of this Article gives limited liability companies a certain degree of autonomy in the transfer of shares.However,the article does not clearly define the boundaries of the constitutional autonomy in practice.There are still many disputes over the restrictions on equity transfer.The restrictions on equity transfer made by the company through the articles of association are various,and the same or similar cases may have different judgments in the judicial trial.Even some cases have passed the first trial,second trial and retrial,which are not for companies and shareholders.The protection of their interests is also not conducive to the realization of judicial justice.Therefore,this dissertation mainly focuses on the issue of regulations on the transfer of equity in limited liability companies.Through gathering and collating some representative cases and combining related theories,it analyzes and discusses some issues that are controversial in practice,and puts forward corresponding suggestions for improvement.This article is divided into five parts:The first part introduces the institutional framework for equity transfer of limited liability companies.Based on the existing legal provisions,it explores the legitimacy of limiting the transfer of equity in limited companies.It also points out that the problem lies in the fact that the company's articles of association have not defined the boundaries of equity transfer,and local courts at various levels have not Establish a unified review standard.The second part is to theoretically explore the rationality of the limited liability company's regulations to restrict the transfer of equity.It is mainly based on the three aspects of human nature and closure of the limited liability company and the autonomy of the company's articles of association to demonstrate the need for the limited liability company to have freedom to the stock rights.Transfers are limited.The third part is to introduce the related types of the company's articles of association to restrict the transfer of equity in practice.This section does not exhaustively enumerate the situations in practice.The author believes that the situation in practice is varied and the company may impose one or more restrictions.Therefore,the author summarizes 11 cases inconjunction with the interpretation of the courts.Divided into four situations,such as the company's articles of association,compulsory transfer of shares,prohibition of transfer of shares,amendments to the articles of association,restrictions on transfer of equity,and other related circumstances,among which the related circumstances include the articles of association requiring that the transfer of equity shall be approved by the shareholders 'meeting or the board of directors,and the articles of association shall restrict the transfer of shares.There are three kinds of prices and restrictions on the conditions for exercising the right of preemption.The fourth part is to analyze the effectiveness of the articles of association to restrict the transfer of shares.The author believes that the focus of the dispute in this type of dispute is inseparable from the validity of the restrictive provisions made by the statute on the transfer of equity.This section analyzes the restrictive clauses of relevant disputes and draws the following conclusions: 1.Whether the contents of the compulsory equity transfer are valid,should be comprehensively clarified on the validity of the clauses,whether the shareholders are aware of the transfer price,and 2.Disguised prohibition of the transfer of equity due to the violation of the principle of free transfer of equity should be found to be invalid;3.The constitution limits the effectiveness of the transfer of equity should be distinguished from the initial or subsequent articles of association two different circumstances.4.The company has the right to make an agreement according to its own requirements on the equity transfer through the articles of association.In this case,the clause should be deemed as valid as long as it is reasonable and legal.The fifth part is to put forward the general judgment standard for judging the autonomy limit of the charter in the equity transfer.First of all,the restrictions on equity transfer made by the statutes must not,in principle,violate the mandatory provisions of the law and public interests.Secondly,equity transfer restriction should retain a reasonable channel for shareholders to withdraw from the company.Again,different boundary standards should apply to the initial statute and the Amendment statute.Finally,the introduction of a reasonableness standard determines that the statute limits the effectiveness of the equity transfer clause.