Research On The Validity Of Entrenched Provisions Of Articles Of Association In China

In the practice of Chinese companies,it is more difficult to pass the resolutions of the shareholders' meeting from the entity or procedure,which is mainly reflected in the special setting of the voting requirements,so as to limit the abuse of capital by the internal control shareholders and protect the interests of minority shareholders in the articles of association.Such articles of association are called the entrenched provisions of the company's articles of association.Due to because of the difference of content,there are of various types,such as entrenched provisions that increase the proportion of shareholders' voting rights,entrenched provisions that are approved by specific shareholders,and entrenched provisions that are added to specific resolution matters.At present,in judicial practice,At present,in the judicial practice,it is difficult to determine the effectiveness of the entrenched provisions in the articles of association.Including,effective or invalid to the entrenched provisions in the articles of association? Are there differences in the effectiveness of different types of entrenched provisions in the articles of association? What kind of criteria should be used in the validation? What factors should be considered in the determination? How exactly it should be understood?From the analysis of the current theoretical research,due to a lack of theoretical support system for the validity of entrenched provisions of articles of association,there are diverse standards,insufficient factor investigation.From the judicial level to present the phenomenon of lack of legal norms to quote,adiversity of standards and that different factors,which indicates that the basic reason is that the framework of the company law in our country,the weakness and shortage of relevant legal norms in terms of entrenched provisions.The second paragraph of Article 43 of the "Company Law" cannot provide a basis for the determination of the effectiveness of various types of entrenched provisions of the company's articles of association,while the generalized autonomy rules of the articles of incorporation cannot analyze the specific disputes in detail.Such as the "Articles of Association otherwise stipulates",the autonomy of the company's articles of association cannot analyze whether the entrenched provisions of require specific shareholders to agree violates the principle of shareholder equality.Therefore,the improvement of the path of determining the effectiveness of entrenched provisions of the articles of association from the theoretical to the normative level.Theoretical perfect including entrenched provisions in the articles of association of a company in our country overall cognitive,cognitive the risk for different entrenched provisions of articles of association,the overall cognitive including entrenched provisions in the articles of association of a company in China in the system of value,legal attribute and the analysis of the connotation,pointed out the capital for the majority is first standards,and exclude type applies to all the shareholders agree to decide effective the validity of entrenched provisions of articles of association,in this sense entrenched provisions that all the shareholders agree shall be effective.The systematic recognition of the classification indicates that the principle of capital majority resolution and shareholder equality should be investigated,and the principle of capital majority resolution and shareholder equality should be recognized.And moral hazard analysis,pointed out the entrenched provisions that specific shareholders agree and entrenched provisions all the shareholders agree to will not therefore be effective flaw,to prevent the risks,establish small shareholders faith obligation standard to supplement or interests of the company as a whole,and because of entrenched provisions that all the shareholders agree have deadlock risk probability,and the benefits are not proportional to the costs,so it is more appropriate to deny the effectiveness of the articles of association of this type of entrenched provisions.And the entrenched provisions that dual voting proportion and the entrenched provisions that additional special conform to the requirements of the majority decision of capital and the principle of shareholder equality and avoid the risks of ethics and company deadlock in terms of content,so their effectiveness should not be defective.On the legislative level,the relevant legal norms in China are improved from two levels of judicial interpretation and enumeration legislation,mainly including the reverse restrictive interpretation of the first paragraph of article 43 of the company law and the construction of specific norms according to the practical situation.