Study On The Limited Liability Company’s Constitution Limit The Equity Transfer

About the equity transfer,corporations generally take "the principle of freedom,The limited liability company insists on the position of "limitation of principle,freedom of exception".The restriction on equity transfer in article 35 of the first company law of China in 1993 is a statutory restriction and a mandatory legal norm.However,in the company law amended in 2005,China added new contents to this content,and its legal provisions mainly focus on the provisions of article 71,paragraph 4,of the company law that "if the company’s articles of association have other provisions on equity transfer,the provisions shall prevail.If there are other provisions in the articles of association,the previous mandatory restriction on equity transfer shall be changed into arbitrariness,so as to make the equity transfer more flexible and more conducive to economic development.However,due to the lack of a unified standard of "other provisions" in the articles of association,the company’s legal practice on equity transfer disputes frequently increase.In view of this prominent issue of corporate practice,it is necessary for us to discuss the boundary of "otherwise stipulated" in the articles of association and the validity of the limitation clauses in the articles of association,except as otherwise stipulated in the articles of association.First of all,we need to make it clear that the articles of association can make any provision about equity transfer,such as the prohibition of equity transfer or some other mandatory restriction on equity transfer.Under what circumstances does the effect of the limitation of the articles of association have effect and under what circumstances does the effect have effect?Secondly,are the restrictions set by the company in the original charter and the effect of the revised charter consistent?How do you tell the difference?And if the articles of association of the company changes the time of equity transfer,voting mechanism and other legal transfer procedures,the effectiveness of the restrictions and how?Finally,how to balance the interests between the company and the parties to the transfer,how to determine the effectiveness of the equity transfer contract and the ultimate ownership of the equity transfer after the provisions of the company’s articles of association to restrict the equity transfer are found to be effective or invalid?Otherwise stipulated in the articles of association of the company law by "from its" endows the company’s articles of association autonomy,this is a kind of reflect the progress of legal system in our country,but because the legislators consider not comprehensive,when legislation to make "otherwise stipulated in the" statement of the ambiguity exists,at all levels of practice of the judge had a great difference in understanding,thus appears a large number of "connection with different sentence phenomenon,serious damage to the judicial authority.Therefore,the understanding of this provision plays a decisive role in the legal effect of the articles of association of limited company to restrict the equity transfer.This article is divided into five chapters,in addition to the introduction,there are four parts.First of all,it starts from the legal basis of the articles of association restricting the transfer of equity,to understand the reasons of the limited liability company’s articles of association restricting the transfer of equity,and to find the theoretical basis of the legitimacy of the articles of association restricting the transfer of equity.In order to explore the judicial position of different courts on the application of "other provisions" mentioned in Article 71,paragraph 4 of the company law,the author classifies and sorts out the types of relevant cases occurred in judicial practice and analyzes the specific effects and legal consequences of different cases in different situations.At the same time,in order to make up for the defects of relevant legislation in China,the author uses the comparative analysis method to introduce the basic situation of the overseas legal system on the restriction of equity transfer by articles of association,and to extract the reference in legislation and justice in China.In addition,the core chapter of this paper is also the problem to be solved in this study,which is the main problem about the restrictions of equity transfer in our country.The last part is also the research significance of this paper,so the author first puts forward some constructive suggestions from the theoretical and practical perspectives to clarify the autonomy boundary of the articles of association.For example,the articles of association can be divided into the memorandum and the articles of association.At the same time,in order to solve the problems encountered in judicial practice,it summarizes the more operable judicial review path and relevant practical suggestions.Through the study on the limitation of equity transfer in the articles of association of limited liability companies,this paper hopes to further help us to clarify the effect and influence of the limitation of the articles of association of limited liability companies on the equity transfer,and at the same time can play a certain reference role in solving the disputes in the company law practice.