A Study Of The Effectiveness Of Forceful Puchase Of Shares Through Amendments Of A Company

The new company law,revised in 2005,eased government controls on companies and greatly improved their autonomy.Company Law of the People's Republic of China stipulates that companies can make "additional provisions" for equity transfering,which provides greater space for corporate autonomy.The freedom of a limited liability company to restrict the transfer of stock rights under the company law also takes into account the characteristic of human compatibility.However,in judicial practice,many companies have forced the transfer of equity by amending the articles of association,which threatened the rights of minority shareholders.Because the company law does not specify the limits of the equity transfer restrictions,the judgments and reasons for such cases are not uniform in judicial practice.Through empirical research,this paper combs,classifies,analyzes and summarizes the reasons and trends of judges' judgment in practice.Combined with theory and foreign experience,this paper puts forward four elements that the court should examine when deciding such cases.The structure of this article includes an introduction,a theoretical analysis of the company's restriction of shareholders to modify the articles of association,case studies,comparative analysis and conclusions.The first chapter of this paper introduces the theoretical of the company's modification of the articles of association to restrict the transfer of equity.It includes the nature of the initial articles of association and the revised articles of association and the legitimacy of restricting the transfer of equity in the initial articles of association and the revised articles of association.The point is that the capital majority decides against the shareholders 'rights and draws its legitimate conclusion.The second chapter is the specific case study in the judicial practice.Through the retrieval and analysis of the cases,it classifies the cases in which the articles of association force the internal transfer of equity.There are three categories: resignation transfer,requiring shareholders to have professional qualifications,and shareholders' infringement on the rights and interests of the company.After that,the main opinions and basis of the court in the trial practice were sorted out,and it was found that the reasons for the different judgments in the same case were due to the vagueness of the provisions of the company law and the legality and rationality of the principle of capital majority.The third chapter is a comparative analysis of the restrictions on the transfer of equity in the amendment of the articles of association.This paper briefly introduces the legal provisions and classic cases of Britain,the United States and other places.The study found that extra-territorial judicial practice attaches great importance to the principle of free equity transfer,so that shareholders can enjoy the maximum freedom of equity transfer as much as possible.Of course,the company's articles of association can also impose certain restrictions on it,such as "reasonable review standard" in American law and "bone fide for the benefit of the company" in British law.The common point of the two is that they both consider the interests of the company and basically rely on case-by-case review.The fourth chapter is the judgment thinking of the compulsory equity transfer of the amendment to the articles of association.Mainly on the basis of the theory,case and comparative law,the author holds that the company has the right to force the shareholders to transfer their equity internally by amending the articles of association.However,it needs to be limited by reasonable review standard.We need to pay attention to whether the company's behavior can make the company achieve its goals better.Finally,on the issue of the company's modification of the articles of association to force the internal transfer of equity,we hope that the court will not judge it as valid only by the articles of association or the resolution of the shareholders' meeting,which does not violate the mandatory provisions of laws and administrative regulations,nor should it be held invalid because it limits the individual rights of shareholders.We should comprehensively analyze other factors,pay more attention to the company's own interests,make the company pay attention to the articles of association,and better realize the company's autonomy through the articles of association.