The Validity Of Company's Articles Of Association Regarding Restricting Equity Transfer

The difficulty in determining the validity of the articles on transfer of shares in the company's articles of association is manifested in whether the company has an autonomy in the transfer of shares,and the extent to which the company's articles of association can limit the transfer of equity,whether the initial articles of association and the follow-up articles are effective in restricting the terms of the equity transfer.To solve these problems,we should still base ourselves on our existing legal system.It is not appropriate to over-interpret the provisions of the law,and at the same time pay attention to the interests of all parties.On the one hand,since the law does not stipulate that non-listed companies have the autonomy to restrict the transfer of shares,the court shall deal with the applicable standards of the case and avoid further intensification of the different judgments of the same case.The articles on the transfer of shares of the non-listed company limited by shares shall be invalidated.On the other hand,the company is different from the partnership,and the majority of the capital is the basis of corporate governance.The provisions restricting the transfer of equity are invalidated in the follow-up charter,which is unreasonable and illegal.However,in contrast,the �bottom line� of the regulation restricting equity transfer is to guarantee the right of shareholders to withdraw.Unless there is reasonable expectation,shareholders have the right to withdraw from the company at any time,so that they can respect the company's autonomy while safeguarding shareholders' rights.This paper is divided into four parts,which are based on the logic of asking questions,analyzing problems and solving problems.The purpose is to clearly identify the standards for the company's articles of association to limit the effectiveness of the equity transfer clause.The first part is the question.Because the courts have different understandings of the law and the different value orientations,similar cases often have opposite judgments,which is not conducive to the effectiveness of corporate governance and related shareholders on the constitutional restrictions on equity transfer.Making judgments has greatly reduced the guidance and normative role of the law.Therefore,it is necessary to clarify the boundary of the company's articles of association to limit the transfer of equity,and clarify the criteria for determining the effectiveness of the articles of association to restrict the transfer of equity.The second part analyzes the problem from the perspective of different scholars at home and abroad.Scholars are still controversial about the extent to which the charter derived from the value conflict can limit the transfer of equity and whether it is necessary to distinguish between the initial charter and the follow-up charter.One argues that the autonomy of the charter is the core of the company's autonomy.Whether it is the initial charter or the follow-up charter,whether it is compulsory or prohibition of equity transfer,it is a commercial judgment,which must be respected and recognized.One believes that the company's field should adhere to the concept of shareholder standard and maximize the interests of shareholders.Only shareholders' consent can dispose of their power.Otherwise,the relevant articles of association should be considered invalid.The third part analyzes the problem from the perspective of the source of the dispute.The reason why the company's articles of association restrict the validity of the equity transfer clause is �disputed continuously�,mainly because the company's articles of association restrict the equity transfer from being justified,but there are also value conflicts: The inherent "personality" of the company and the autonomous nature of the articles of association are the justification basis for the company's articles of association to restrict the transfer of shares,but the justification basis is in contradiction with the shareholder's freedom of equity transfer,thus making the company's articles of association restrict the transfer of shares.There is a value conflict.How to choose between different values becomes the key to discussing how to determine the effectiveness of the company's articles of association to limit the scope of equity transfer.The fourth part is the solution of the problem.After combing the practical jurisprudence,analyzing the source of the dispute and discussing the disputes in the academic circles,it is concluded that the principle of balance should be used as the theoretical support,and the standard of identification should be �hands-on,two-pronged,so that To make a more accurate determination of the effect of the Articles of Association on the transfer of equity restrictions.It should start from the two aspects of the recognition principle and the identification standard.First,the balance principle is the core of determining the effectiveness of the company's articles of association to set the equity transfer clause,mainly in compliance with capital.The majority rule,the reasonable expectation of shareholders,and the existing legal system;specific to the standard of identification,only limited liability companies have charter autonomy that restricts equity transfer,and cannot be extended to non-listed joint stock companies;The maintenance of the basics and the effect of the restrictions on the transfer of equity rights are not different because the carrier is the initial charter or the follow-up charter;the company may,in accordance with the articles of association,make restrictions on the transfer of shares in accordance with the needs of corporate governance,including restricting or prohibiting the transfer of equity of specific shareholders.And prohibiting equity transfer within a certain period of time But limits that may not be deprived of the right to freedom of shareholders to exit the company,the shareholders can not be permanently trapped in the company.