The role of the articles of association:
1. The most important conditions and documents for establishing a company
The establishment procedure of a company begins with the conclusion of the articles of association and ends with the registration of establishment. China's "Company Law" clearly stipulates that the establishment of articles of association is one of the conditions for the establishment of a company. The examination and approval authority and the registration authority shall examine the articles of association of the company and decide whether to approve or register. The company has no articles of association and cannot be approved for registration.
2. The Articles of Association is the basic legal document to determine the relationship between rights and obligations of the company.
Once the Articles of Association are approved by the relevant departments and approved by the company registration authority, they will become legally effective to the outside world. The company enjoys various rights and undertakes various obligations in accordance with the articles of association, and the behaviors that conform to the articles of association are protected by the state laws; In violation of the articles of association, the relevant authorities have the right to intervene and punish.
3. The basic legal basis of the company's foreign business dealings.
Because the articles of association stipulate the principles and detailed rules of the company's organization and activities, including business objectives, property status, rights and obligations, etc. It provides conditions and credit basis for investors, creditors and third parties to conduct economic exchanges with the company. Anyone who is associated with the company's economy according to the company's articles of association can be effectively protected according to law.
4. The articles of association are the autonomy norms of the company.
As the company's autonomy criterion, the Articles of Association is determined by the following contents. First, the articles of association, as a code of conduct, are not formulated by the state, but by the shareholders of the company according to the company law. The Company Law is the basis for formulating the Articles of Association. Because the company law can only stipulate the universality of companies, it is impossible to take into account the particularity of each company. The articles of association formulated by each company according to the Company Law can reflect the company's personality and provide the company with a code of conduct. Second, the company's articles of association is a code of conduct outside the law, which is implemented by the company itself and does not need state coercion to ensure its implementation. In case of violation of the Articles of Association, as long as it does not violate laws and regulations, it shall be resolved by the company itself. Third, the articles of association, as the code of conduct within the company, only have the effect of the company and relevant parties, but have no universal effect. In view of the above functions of the articles of association, it is necessary to strengthen the legal effect of the articles of association. This is not only the need of company activities, but also the need of the healthy development of market economy. The articles of association, like the company law, bear the responsibility of adjusting the company's activities. This requires that the shareholders and promoters of the company must be considerate and clearly defined when formulating the articles of association, and cannot make various understandings. The company registration authority must strictly control the articles of association of the company, supervise the establishment of the company from the perspective of state management, and ensure the normal operation of the company after its establishment.
Revision of the Articles of Association:
In any of the following circumstances, the company shall amend the Articles of Association:
(1) After the Company Law or relevant laws and administrative regulations are amended, the matters stipulated in the Articles of Association conflict with the provisions of the amended laws and administrative regulations;
(2) The company's situation changes, which is inconsistent with the matters recorded in the articles of association;
(3) The shareholders' meeting decides to amend the Articles of Association.
Legal effect of the Articles of Association:
The Articles of Association shall be legally binding after being signed by shareholders. The company rules and regulations of the articles of association determine the effectiveness of the articles of association on the company and its shareholders, and at the same time bind the directors, supervisors and managers of the company. China's "Company Law" stipulates: "The articles of association of the company must be formulated in accordance with this law." The Articles of Association are binding on the Company, shareholders, directors, supervisors and managers.
(1) The articles of association bind the company.
The articles of association are the basic principles of company organization and behavior, and the company must abide by and implement the articles of association. According to the articles of association, the company has obligations to shareholders. Therefore, once the company infringes the rights and interests of shareholders, shareholders can bring a lawsuit against the company according to the company's articles of association.
(2) The articles of association bind shareholders.
These Articles of Association are the company's autonomous regulations. Every shareholder, whether participating in the formulation of the initial articles of association or later joining the company by subscribing or transferring shares of the company, is bound by this contract. Shareholders must abide by the articles of association and have obligations to the company. If a shareholder violates this obligation, the company may bring a lawsuit against him according to the articles of association. However, it should be noted that shareholders are only bound by the company as shareholders. If the shareholders are related to the company in other capacities, the company cannot claim rights from the shareholders according to the articles of association.
(3) The articles of association of the company bind the relationship between shareholders.
The articles of association are generally regarded as a contractual relationship between shareholders, which makes shareholders have mutual obligations. Therefore, if a shareholder's rights are infringed by another shareholder's violation of personal obligations stipulated in the company's articles of association, the shareholder can claim rights from another shareholder according to the company's articles of association. However, it should be noted that the basis of shareholders' rights request should be the rights and obligations between shareholders stipulated in the company's articles of association, such as the preemptive right of shareholders in a limited liability company to transfer their capital contribution, rather than the rights and obligations between shareholders and the company. Shareholders violate their obligations to the company, and the interests of the company are infringed. Other shareholders cannot claim rights directly from shareholders, but only through the company or in the name of the company.
(4) The Articles of Association are binding on the directors, supervisors and managers of the Company.
Directors, supervisors and managers, as senior managers of the company, have a fiduciary duty to the company. Therefore, the company can bring a lawsuit against the company's directors, supervisors and managers for violating the duties stipulated in the company's articles of association. However, it is still inconclusive whether directors, supervisors and managers have direct fiduciary duties to shareholders. It is generally believed that the obligation of directors is to the company rather than directly to the shareholders. Therefore, under normal circumstances, shareholders cannot directly sue directors. However, the legislation or judicial precedents of various countries recognize some exceptions while determining the above general principles. When the directors of a company intentionally or seriously violate the duties stipulated in the articles of association and directly infringe upon the interests of shareholders, shareholders may claim rights from the directors, supervisors and managers of the company according to the articles of association.
China's "Company Law" does not stipulate the directors' liability to the third party, nor does it stipulate the shareholder's representative litigation. However, in the articles of association of overseas listed companies, in order to meet the needs of overseas listing and coordinate with the relevant laws of the countries where overseas listing occurs, the shareholders' direct litigation rights against directors are stipulated in the articles of association. Article 7 of the Essential Clauses also extends the effectiveness of the Articles of Association to other senior management personnel of the company except directors, supervisors and managers, namely, the company's financial controller and secretary of the board of directors. Provisions: "The Articles of Association is binding on the Company and its shareholders, directors, supervisors, managers and other senior management personnel; The above-mentioned personnel may claim rights related to company affairs according to the articles of association. Shareholders may sue the directors, supervisors, managers and other senior management personnel of the company in accordance with the articles of association. "
Legal basis:
Company Law of the People's Republic of China
Article 11:
To establish a company, the articles of association must be formulated according to law. The Articles of Association are binding on the Company, shareholders, directors, supervisors and senior management.
Company Law of the People's Republic of China
Article 12:
The business scope of the company is stipulated in the articles of association and registered according to law. A company may amend its articles of association and change its business scope, but it shall register the change.