The External Validity Of Charter

The articles of association are the basis of corporate governance and the embodiment of the spirit of corporate autonomy.It is self-evident that the relevant persons within the company are bound by the validity of the articles of association,but for such cases as external guarantee of the company and transfer of foreign equity,because the members or shareholders of the company are bound by the articles of association,the third party who has a security or transaction relationship with the company is indirectly affected by the articles of association,that is,’ spillover effect ’,which is binding on the third party.However,whether the articles of association have external effect is not only different in theoretical research,but also controversial in judicial practice.Therefore,clarifying the external effectiveness of the articles of association is not only conducive to reasonably defining the scope of the articles of association in theory,but also helps to eliminate disputes in judicial practice.This paper discusses the external effect of the articles of association.In addition to the introduction and conclusion,it is divided into the following three parts :The first part discusses the theoretical basis of the external validity of the articles of association.This paper argues that firstly,as the legal basis for the external effect of the articles of association,the publicity of the articles of association should have the corresponding legal effect,reflecting the principle of commercial law appearance and the principle of commercial law efficiency.The external effect of the articles of association after publicity has been recognized by many developed countries.The publication of articles of association includes registration and announcement.The publication of articles of association needs to clarify the relationship between commercial registration and articles of association registration.The scope of publicity of articles of association includes publicity of some records and publicity of all records.Secondly,it makes an in-depth analysis of the nature of the constitution,focusing on the contract theory and the autonomous law theory on the nature of the constitution.The two theories have their own advantages and disadvantages,but the autonomous law theory is more conducive to providing a theoretical basis for the realization of the external effectiveness of the constitution.Finally,the presumptive notification function of the company law on the articles of association can demonstrate that some of the items recorded in the articles of association have external effect.The company law has publicity,and the mandatory norms of the company law are passed through the articles of association.Article 16 of the company law ’ s foreign guarantee rules and ’ company law ’ Article 71,paragraph 4 of the articles of association of equity transfer can be separately provided for two typical refinement and exclusion of the applicable provisions of the company law are analyzed,and the ’ Jiangsu Yinda Technology Co.,Ltd.and China Construction Materials Group Import and Export Company Guarantee Contract Dispute Appeal ’and other related typical cases are introduced and demonstrated.The second part elaborates the content of the external validity of the articles of association and the relevant legal norms in China.First of all,put forward the basic principle of confrontational force,the articles of association after publicity can be against the third party in a specific range,including negative confrontational force and positive confrontational force.And elaborate the civil law countries on the provisions of the statute of confrontation and the presumption of knowledge rules of common law system.The rule of presumptive knowledge was once the theoretical source of the external validity of the articles of association of Anglo-American Company Law.Although it has been amended now,there are perfect information disclosure system,director responsibility mechanism and other new systems to fill the gaps in the system.Secondly,the legal basis of credibility is that the content of the articles of association is publicized with the help of the company registration authority.The company registration authority,as a national public authority,endorsements the authenticity of the items recorded in the articles of association.The third party who trusts the articles of association announced by the company registration authority and deals with the company is protected by law.The relationship between confrontational power and credibility is further elaborated.The confrontational power focuses on safeguarding the rights and interests of the company,and the credibility focuses on safeguarding the reliance interest of the third party in good faith on the public articles of association.Finally,this paper summarizes and explains the legislative provisions of the publicity and effectiveness of the articles of association in China,and points out that there are some legislative gaps and inadequate implementation of the publicity system of the articles of association in China.A new method should be explored to analyze the external effectiveness of the articles of association.The third part is a typological analysis of the external effectiveness of the articles of association of Chinese companies according to the degree of publicity of the articles of association.This paper argues that the traditional classification of the articles of association in the civil law system is not directly related to the external effectiveness of the articles of association,while the dichotomy of the articles of association in the Anglo-American law system divides the articles of association into“ internal articles of association ” and “ external articles of association ”,which is worth learning.Therefore,according to the different degree of publicity of the articles of association,the author divides the articles of association records and discusses the external effect of the articles of association records in a typological way.In China,the registered items recorded in the articles of association have been publicized through the enterprise credit information publicity system.This part of the recorded items have positive confrontation and credibility to the third party.The items recorded in the articles of association are only recorded in the company registration authority at present.The third party ’ s inspection and reproduction need to pay a certain amount of time and money cost,and the publicity is weaker than the registered items.This part of the content has confrontation and credibility for malicious third parties.However,some of the special express provisions of the company law make some of the items recorded in the articles of association obtain similar publicity effect with the company law,so it has positive confrontation effect.