The Company's Articles Of Association Stipulate The Effectiveness Of Compulsory Repurchase Of The Equity Of Resigned Employees

The disputes caused by the compulsory repurchase of shares stipulated in the articles of association are not uncommon in reality.Due to the different understanding of the legitimacy boundary of the equity transfer restriction measures set up by the company in judicial practice,the phenomenon of "different judgments for the same case" has appeared repeatedly.The Supreme People's court also tried to solve this problem by issuing the No.96 guiding case,but in this guiding case,the trial court's choice,examination and determination of the effectiveness elements are not perfect,resulting in the dispute between the two parties has not been properly resolved.Although it is reasonable to take whether the articles of association are the initial articles of association and signed and agreed by all shareholders as the effectiveness elements in this guidance case,there are still obvious deficiencies: first,there is no clear attitude on the effectiveness of the articles of association modified according to the capital majority rule in this case.In the process of the amendment of the articles of association,although some shareholders are against the addition of the mandatory repurchase clause,according to the capital majority rule,the articles of association are still passed in accordance with the legal voting procedure,and the contents of the articles of association also represent the overall will and interests of the company.In dealing with such disputes,if the court negates the validity of such articles of association only according to the original articles of association or the unanimous consent of all shareholders as the effectiveness element on the ground that no contractual relationship has been established between the company and the opposing shareholders,it is easy to cause confusion in the application of law;secondly,although the way of guiding the company involved in the case to limit the identity of shareholders to employees can play a role In the end,the nature of the behavior of forced share buyback and its impact on the freedom of equity transfer are not analyzed in the guidance case,which is convenient for the court to excessively contain the company side while ignoring the possible damage.The text of this paper is divided into three parts to discuss the validity of the articles of association.The first part makes a preliminary typological analysis of the effectiveness elements in the guidance case No.96 issued by the supreme law,and holds that the effectiveness elements reflected in the guidance case are insufficient in terms of examination and identification.The second part of the 96 guiding case of the effectiveness of the elements of an expanded analysis.First of all,the effect of mandatory share buyback in the initial articles of association and the effect of mandatory share buyback in the subsequent amendments of the articles of association,There should be some differences in the determination.We should not mechanically adhere to the necessity of giving up the judicial intervention on the behavior of compulsory share buyback with the unanimous consent of all shareholders.Secondly,the court should pay attention to the corporate governance structure rather than the maintenance closeness reflected in the compulsory share buyback.Finally,as a kind of stock,the compulsory share buyback should be considered The restrictions on the transfer of rights should conform to the principle of proportionality.The court should examine the degree of the company's human integration to determine whether it is necessary to support the forced buyback of shares in order to maintain the company's human integration when dealing with disputes.In the third part,some suggestions are put forward to improve the identification of effectiveness elements: first,to distinguish the types of articles of association according to whether there is an agreement.When there is an agreement between all shareholders(that is,there is evidence to prove that the shareholders agree or approve the provisions of the articles of association on compulsory buyback of the stock rights of resigned employees),it shall be handled according to the agreement;if there is no agreement between shareholders,it shall be identified in combination with other elements.Secondly,the principle of proportion should be embodied in the legislation,which clearly stipulates that the compulsory share buyback must have a reasonable purpose.Finally,when the validity is in doubt,the freedom of equity transfer should be given priority.