Paragraph 4 of article 71 of the Company Law endows the articles of association of the limited liability company with the freedom to create autonomous equity transfer clauses,which results in the dispute over the dete...Paragraph 4 of article 71 of the Company Law endows the articles of association of the limited liability company with the freedom to create autonomous equity transfer clauses,which results in the dispute over the determination of the validity of compulsory share transfer clauses in the articles of association and their amendments.At present,there is no consensus between the theoretical and practical circles.In principle,the autonomy of a limited liability company based on majority rule should be respected by the court.However,the validity of articles of association in specific situations still needs to be weighed in complex interests.Compulsory equity transfer clause must have the legitimacy,otherwise it may violate fairness and justice and general social emotion.The legitimacy of compulsory equity transfer clause can be materialized and categorized through effective conditions and transfer price.It is not appropriate to regard the prior consent of the expelled shareholder as the sole criterion for affirming the validity of the compulsory equity transfer clause,or to ignore it completely.Instead,it should be regarded as a supplementary element of legitimacy.展开更多
文摘—、引言法律制度供给是根据社会需求的变化而变化的,没有亘古不变的静止,也没有永恒的法律,法律总是随着社会需求的变动而发生相应变化。当下,公司契约论成为公司权力配置的主导型理论,而与之相适宜的双层股权结构模式(a dual-class capital structure)也正成为公司治理改革的重要践行需求。
文摘Paragraph 4 of article 71 of the Company Law endows the articles of association of the limited liability company with the freedom to create autonomous equity transfer clauses,which results in the dispute over the determination of the validity of compulsory share transfer clauses in the articles of association and their amendments.At present,there is no consensus between the theoretical and practical circles.In principle,the autonomy of a limited liability company based on majority rule should be respected by the court.However,the validity of articles of association in specific situations still needs to be weighed in complex interests.Compulsory equity transfer clause must have the legitimacy,otherwise it may violate fairness and justice and general social emotion.The legitimacy of compulsory equity transfer clause can be materialized and categorized through effective conditions and transfer price.It is not appropriate to regard the prior consent of the expelled shareholder as the sole criterion for affirming the validity of the compulsory equity transfer clause,or to ignore it completely.Instead,it should be regarded as a supplementary element of legitimacy.
