区分《公司法》中强制性规范与任意性规范之路径

强制性规范与任意性规范的界限并不是一成不变,而是会随着自治与强制之间平衡的发展而变化。这种动态表明,任何试图事先精确区分二者而一劳永逸的做法注定徒劳无功。但通过类型化确定一个大致的区分标准与判断取向,再通过法官的判决使大致、模糊的区分在个案中得以明确化是一个值得尝试的思路。

A Approach for Distinction between Arbitrary Norm and Peremptory Norm in Company Law

The boundaries of peremptory norm and arbitrary norm are not static, which will change with the balance between autonomy and force. This conclusion showed that any challenge, which try to accurately distinguish them once and for all, destined to be fruitless. But typed to determine a rough distinction between standards and judging orientation, through the judge＇s ruling, fuzzy distinction be clarified through a case is a worthwhile idea.