公司章程“另有规定”检讨

A Review on Otherwise——Provisions of Bylaw

公司法在有限责任公司股东表决权、股权转让、股权继承、股份有限公司利润分配等方面规定了公司章程"另有规定的,从其规定",从而排除适用公司法的条款。初始章程与章程修正案具有不同的法理基础,公司章程"另有规定"的效力应分别作判断。在适用法上,公司章程"另有规定"应贯彻股东平等原则。

The articles of ＂…unless it is otherwise provided by the bylaw＂ were introduced into the Company Law of China in 2005. According to such articles, legal norms of the Company Law, such as how to exercise shareholders＇ voting rights in a limited liability company, how to distrib ute profits in a joint stock company limited, etc. , can be opt out by the bylaw. These articles changed the nature of relevant legal norms from mandatory provisions to random ones. The proposition that companies should be free to opt out legal norms has been put forward by some important and influential scholars. The advocates of this opinion start from the view that the company is a contractual creature, a ＂nexus of contracts＂. But there is a different legal basis between a bylaw amendment and an initial bylaw. An initial bylaw can be viewed as a contract binding all the shareholders, but a bylaw amendment, which does not require unanimous consent of all the shareholders, cannot be viewed as a contract （except that all the shareholders vote for the amendment）. Consequently, one cannot rely directly on the contract mechanism to uphold the otherwise- provisions of a bylaw amendment. The company law of 2005 ignored the above--mentioned differenees. In practice, minority shareholders＇ fundamental rights are often limited or deprived by amendments of bylaw. Legislation and judicature should pay attention to such problems. Shareholders should not submit to otherwise-provisions of a bylaw amendment unless their own consent. Furthermore, the otherwise --provision itself should be effective before it can be applied. It should follow the principle of equality between shareholders, and so on.