Capital Majority Decision:Between The Company Law And The Articles Of Association

Capital majority decision is the basic decision rule of modern corporate governance.But in its specific application area,there are frequent conflicts between the autonomy of the articles of association and the relevant norms of the company law.Focusing on the Company Law Article 43 as a breakthrough point,for reference of this norm,the conditions of the company’s articles of association has two kinds:one is according to the the second paragraph of Article 43,stipulating that when deciding the company special major matters,use the statutory capital absolute majority way(which demands the proportional voting rights should beyond " 2/3 ");Another one is according to the authorization of the first paragraph,capital majority decision is applied as a resolution methods to decide certain other matters of company by the autonomy provisions.These two kinds articles of association conditions during the specific practice process,lead to a lot of disputes.For example,in the first category,some companies will autonomously raise the threshold of the proportion of their voting rights to a level requesting "unanimous consent of all shareholders",which makes the articles of association appear inconsistent with the legal provisions.Also,some provisions and the law maybe in completely consistent,but in the specific implementation,they will deviate from the requirement of the law.And in the second category,if the articles of association apply capital majority decision in accordance with the authorized autonomy,it is also possible that the rightful,legally form may conceal the illegal substance.Behind the controversy over these specific cases is the ambiguity of a macro issue: where is the boundary of the corporate autonomy of capital majority voting?From the above perspective,this paper conducts empirical research and normative analysis on specific disputes in practice,and analyzes and clarifies the main clue issues from phenomena to theories based on the typed research on the validity of relevant articles of association.The first part of the article is a deep dig and detailed explanation of the realistic conflict.This part first puts forward the types of the capital majority clause of the articles of association,and makes clear the current situation that it is difficult to resolve the dispute only by explaining provisions.Secondly,this part collected and sorted out the practical evidence for different types of issues: in the case of the "apparent illegality" of the articles of association,by searching the case documents within the selected scope,this section made an overall and specific examination of the differences in judgment opinions on the validity of the "unanimous decision" clause;While taking the specific case of capital increase as an example,on the one hand,through the introduction of typical cases and the series of similar cases,the contention of the issue is put forward.On the other hand,from the perspective of the Supreme Court cases,this section summarizes the shareholder oppression caused by the alienation of capital majority decision in practice.The results of collecting and sorting out these practical problems have laid an empirical foundation for the comprehensive effectiveness research in the following paper.The second part of this paper is the concrete analysis and discussion based on the empirical evidence mentioned above.First of all,the research scope and objective of the paper are clarified again in order to promote empirical and normative research with clear problem thinking.In this chapter,it is concluded that the "unanimous decision" clause has a room for application in China,and its exclusion of majority decision by capital has certain legitimacy.Therefore,such clause has legal effect except in exceptional and differentiated cases.And in specific increase capital circumstance(such as increasing capital by different proportion,or without asset evaluation,or with improper aims),the majority decision clause although tends to be a rightful form,but its concrete practice result leads to the abuse of the right of big shareholder and the damage of the rights and interests of small shareholder,producing a lot of illegal effects,thus the corporate autonomy of will should be deemed invalid(including the untenability and revocability of corporate resolutions).As for the case that the articles of association overuse the clauses of capital majority decision and implement shareholder oppression,it is even more illegal and vicious,and such clauses that exceed the legal limit of capital majority decision should be invalid.Through the summary and extended discussion of the categorization research in the second part above,the third part of this paper provides corresponding answers to the theme questions discussed.In the analysis and discussion of the above concrete practice,the rules guiding the autonomy of company can be abstracted.On this basis,this paper further expands the horizon,from the perspective of the protection of shareholders’ rights and interests,the establishment of shareholders’ rights and obligations,the connotation of the principle of equity of shareholders,the balance of interests and the requirements of check-and-balance,and other principles of legal rules,the article explores the autonomous legal boundary of capital majority decision.Finally,it summarizes a set of rules of effective autonomy limit of company’s will when concerned with capital majority decision rule,and makes clear the autonomy space protected by law when the corporate autonomy clause involves whether and how to apply capital majority decision as a vote mechanism.