Research On The "Path" Of The Validity Determination Of Limited Liability For Equity Transfer Restrictions

The Company Law grants limited liability companies the right to set restrictions on equity transfers through the articles of association,but does not clearly define the boundaries of the exercise of rights.The content of the legal provisions is vague and lacks operability,which leads to confusion about the "path" of the validity of restrictive provisions on equity transfer in practice.There are many discussions on the identification of "paths" in the theoretical circles,most of which are based on the charter contract theory or direct reference to the provisions of Anglo-American law.So far no unified conclusion has been reached.This article is based on the constitutional charter and re-constructs the identified "path".The new "path" has two characteristics: First,it re-understands and analyzes the company's affairs through the theory of corporate constitutional governance.Articles of incorporation that are of the nature of a company's charter should protect the overall interests of the company's shareholders while paying attention to protecting the legitimate rights and interests of the company's minority shareholders.Under the guidance of the three decision-making principles of corporate constitutional theory,judge the justice of the decision-making process of the restrictive clauses of the constitution.Second,it draws on the review criteria of the proportionality principle and its analytical framework.Analyzing the effectiveness of restrictive clauses in equity transfer through the principle of proportionality can not only prevent majority shareholders from using their dominant position to oppress minority shareholders,ensure the legitimate rights and interests of minority shareholders,but also help clarify the discretionary standards for judicial trials.In terms of structure,this article can be divided into three parts:The first part is the first chapter,sorting out the cases of disputes over equity transfer of limited liability companies,summarizing the "paths" in judicial practice,and raising the questions to be addressed in this article,namely whether the articles ofassociation of a limited liability company can limit the transfer of equity and the effectiveness of restrictive clauses.How to identify.The second part is Chapter Two,which analyzes whether the articles of association of a limited liability company can restrict the transfer of equity from the aspects of rationality and legitimacy,and proposes the constitutionality of the articles of association.The equity is a special membership right,and the connotation of the company's human nature is internal to the company.Understanding of the trust relationship between shareholders and shareholders and between shareholders and the company.Shareholders under the charter have a two-dimensional role.They need to protect both their own interests and the company's overall interests.Equity transfer will involve both types of interests.As a special member right,the stock right has the characteristics of personal attachment and cannot be transferred at will.The special human nature of a limited company may be affected by the transfer of equity.Therefore,based on the reasons of maintaining the two-dimensional role of shareholders,maintaining the human nature of the limited company and the affiliation of the equity person,the articles of association may make restrictions on equity transfer.In addition,based on the appearance of the legal norms and the purpose of normative setting,Article 71 of the "Company Law" is an arbitrary norm,and the articles of association may restrict the transfer of equity.It can be seen that the restrictions on equity transfer in the articles of association of the company are reasonable and legal.The third part consists of chapters three and four.The third chapter mainly introduces and analyzes the current "path" of academic circles.The two existing "paths" in academia are problematic.The theory of corporate contract based on the type analysis method of charter effectiveness and the purpose of preventing major shareholders from abusing capital majority are flawed.The simple method of legal interest measurement,one-sided pursuit of the protection of one party's interests,is more likely to lead to an imbalance between the personal interests of shareholders and the overall interests of the company.The fourth chapter is the reconstruction of the identified "path",that is,the review of the decision-making process based on the three principles of corporate constitutional theory,and the content of decision-making based on the principle of proportionality.Review of the protection of minority shareholders' interests.