Research On The Validity Of Entrenched Provisions Of Articles Of Association

In recent years,in order to limit the abuse of the principle of "capital majority" by the company’s internal controlling shareholders and damage the rights and interests of small and medium-sized shareholders,articles of association have emerged in practice to improve the difficulty of voting on specific resolutions at the shareholders’ meeting,which are called defensive articles of association.According to the specific content,the defensive clauses in the articles of association can be divided into the following three types: the defensive clauses of increasing the proportion of voting rights,the defensive clauses of adding special resolutions and the defensive clauses of specific shareholders’ consent.In practice,the defensive provisions of the articles of association do play a positive role in protecting the rights and interests of small and medium-sized shareholders.However,the effectiveness of the defensive provisions of the articles of association has many problems,such as various standards,lack of comprehensive investigation on the legitimacy and rationality factors,and lack of invoking the autonomy norms of the articles of association.The fundamental reason lies in the lack of systematic theoretical support for the effectiveness of the defensive provisions of the articles of association,and the lack of detailed provisions of relevant laws.Specifically,in terms of theory,the definition of the legal attribute of the defensive provisions in the articles of association is not clear,and the risk of establishing the defensive provisions in the articles of association is not fully understood;in terms of norms,Articles 42 and 43 of the company law,which are single in content,can not provide a clear basis for determining the legal effect of various types of defensive provisions in the articles of association in practice At the same time,the general self-government norms of the articles of association can not provide a detailed analysis of the specific disputes related to the determination of the effectiveness of the defensive provisions of the articles of association in judicial practice.Therefore,we need to improve the effectiveness of the defensive provisions in the articles of association.First of all,we should clearly define the legal attribute of the defensive provisions in the articles of association.The legal attribute of the defensive clause in the articles of association is the starting point of the judge’s legal interpretation of the cases related to the determination of the effectiveness of the defensive clause in the articles of association.It is a "meta proposition".It is related to the establishment and effectiveness of the defensive clause in the articles of association,and determines the binding force of the effective defensive clause in the articles of association.Therefore,the recognition of the legal attribute of the defensive clause in the articles of association must be unified,otherwise it can not provide reliable and definite rules for the determination of the effectiveness of the defensive clause in the articles of association,and it can not alleviate the confusion of the judgment of the determination of the effectiveness of the defensive clause in the articles of association.Secondly,we should systematically analyze the risks of the defensive provisions in the articles of association,and further improve the factors that need to be included in the scope of investigation when determining the legal effect of the defensive provisions in the articles of association.Finally,it is suggested that the existing self-governing norms of the articles of association should be interpreted restrictively in the form of judicial interpretation.When the time is ripe for legislation,the defensive provisions of the articles of association should be written into the company law in the mode of enumeration legislation.