A Study Of The Limits Of Autonomy In The Company's Articles Of Association

China's "Company Law" was born in 1993 and has undergone several amendments since then.As an important member of the field of "private law",company law embodies the spirit of autonomy of private law in its entire law,which promotes the continuous development of the "company law" in the direction of company autonomy.The company's articles of association,as the most effective documents within the company,regulate and control the operation and development of the company.The autonomy of the company's articles of association reflects the continuous improvement of the human nature of the company.Terminology also proves the development of corporate autonomy.According to the law,at the beginning of the establishment of a company,the company's founders can adopt articles of association in accordance with the authorization of the "Company Law" to make provisions that meet their own needs.However,in the field of practice today,the company's articles of association have appeared to be different from those stipulated in the company's law that are not explicitly authorized by the company's law.Article 43(2)of the Company's Law is one of the more controversial provisions today.One.According to the literal interpretation of Article 43(2)of the "Company Law",it means that the articles of association of the company shall not modify the statutory absolute majority voting capital ratio,and the ratio itself is immutable.Above or below this ratio shall be deemed as invalid.However,some scholars believe that this clause should be considered from the aspect of purpose interpretation.The clause considers that major matters in the company involve the immediate interests of shareholders,and a certain percentage must be established to protect the interests of minority shareholders.Therefore,the proportion above this clause is reasonable and reasonable.Acceptable.In judicial practice,the courts have a lot of disputes about the validity of such articles,and each has its own validity and invalidity.To this end,this article will focus on the provisions of Article 43(2)of the "Company Law",through empirical analysis,comparative analysis,etc.Analysis of rationality with a view to clarifying the autonomy limits of the articles of association of Article 43(2)of the Company Law.This article consists of the following seven parts.The first chapter is to raise the issue.Through the autonomous development of the Company Law and the description of the status quo of the company's constitutional autonomy,it also demonstrates the court's dispute over the "unanimous agreement of all shareholders" in practice,and points out that there are currently disputes in such terms.The second chapter looks at the constitutional autonomy from the perspective of company law.The content is mainly divided into two parts: one is to sort out and summarize the concept of autonomy that has emerged in China's company law since the legislation;the second is to conduct an overall review of the current company law provisions.Divided into three types of articles,namely "unauthorized articles of association provisions","articles of provision provisions" and "articles provide otherwise provisions".The third chapter is an empirical analysis of the case of Article 43 of the "Company Law".Through combing research on related cases,it summarizes and analyzes different opinions and core disputes.The fourth chapter analyzes the legality of the "unanimous consent of all shareholders" clause.It analyzes the nature of the company's articles of association and the nature of the company's law.It points out that the core nature of the company's articles of association is its autonomous regulatory nature.The company law can appropriately relax some autonomy provisions;further propose the identification method of mandatory norms in the company law,and use this to distinguish between arbitrary norms and mandatory norms;finally,through in-depth analysis,it is concluded that the "unanimous consent of all shareholders" clause has Conclusion of legitimacy.The fifth chapter is the rationality analysis of the "unanimous agreement of all shareholders".It conducts an in-depth analysis of the legitimacy and harmfulness of the capital majority decision,and introduces defensive clauses of the charter for comparative examination.It is calculated by the benefits of the two voting mechanisms.The "enumerated consensus of all shareholders" clause is reasonable.Chapter Six is the study of comparative law.It introduces the relevant systems in the United States,Germany,and Chinese Taiwan,and reflects on the content of Article 43(2)of the Company Law.Chapter VII is a summary,which is mainly divided into two parts: one is that the articles in the Articles of Association under Article 43(2)of the Articles of Association “enumerated by unanimous consent of all shareholders” shall be valid;the second is mandatory in the Company Law There is an autonomous space in the norms.This article attempts to clarify the boundary between the mandatory norms and the autonomous space.