A Judicial Study On The Clause Of "Resignation And Retirement" In The Articles Of Association Of Limited Companies

In 2018,the Supreme People’s Court issued Guiding Case No.96,which affirmed the validity of the "resignation and withdrawal of shares" clause in the articles of association from the aspects of the limited liability company’s personal integrity and closedness,and the autonomy of articles of association,and hoped to unify such cases.Judgment standards and applicable laws.However,since its release,it has been referenced and cited less than five times by local courts,and the dual judgment path established to distinguish between the initial charter and the revised charter is even more questionable.By retrieving disputes over the past ten years concerning the clauses of "resignation and withdrawal of shares",it is found that judicial practice has different opinions on the determination of the validity of the disputed clauses,including affirmation,denial,and distinction.The understanding of the co-ordination of limited companies and the thinking of adjudication in the scope of the autonomy of the articles of association are very different.Return to business practice,explore the causes of differences from the perspectives of the company and shareholders,analyze the realistic basis for the "resignation and withdrawal" clause,and straighten out the logic of dispute resolution from the perspective of value balance: First,the thinking of judgment should be unified,and the initial decision should not be distinguished.The articles of association and the revised articles of association determine the validity of the articles,reasonably judge the attributes of the limited liability company,and classify the compulsory equity transfer as the category of autonomy in the articles of association;secondly,clarify the validity standards of the "resignation and withdrawal" clause,including the clarity and rationality of the content of the clause and the interests of the company.First,the terms are valid only when the aforementioned criteria are met;finally,when the terms are valid,the implementation plan of equity repurchase or equity transfer is adopted for different transferees.