The legal response to enterprise person compatibility: Passive respect rather than active reinforcement
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D922.291.91

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    Abstract:

    This paper focuses on the rational relationship between enterprise person compatibility and the construction of corporate legal systems. The enterprise person compatibility is a recessive institutional arrangement being based on special relationships such as trust and cooperation among the members of the organization, which is related to the operation of the organization. As an element of concern for organizational contract, the enterprise person compatibility is a contractual issue that does not involve in public interests, the interests of the third party and the protection of the rights and interests of the weak, and without compulsory legal intervention. In terms of the investment share transfer, the operation voting mechanism, the limit to number of members of the organization and so on, the legal compulsory intervention shows a decreasing trend. It is supposed to be the rational choice of the law to passively respect the contract design for person compatibility of the organization members based on business logic. Excessive strengthening of enterprise person compatibility in legislation and judicial dogmatism in dealing with such issues not only improperly interfere with the autonomy of commercial transactions, but also seriously deviate from the specific needs of commercial transactions. During the new round of amendments to the Company Law, it is suggested to hold the modest ground of legislation, and even to delete the strict restriction rules of investment share transfer. Proper tolerance to the upmost limitations of members in limited liability companies and to introduce articles involving shareholder’s unanimous decision principle and restriction of investment share transfer in the articles of association is recommended.

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曹兴权,卢迎.企业人合性的法律因应:被动尊重而非主动强化[J].重庆大学学报社会科学版,2021,27(6):177~190

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  • Online: December 20,2021
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