How should the articles of association be written and what should be paid attention to?

The articles of association are called articles of association, so they have the highest legal status within the company. However, many shareholders trust each other and unite with each other when setting up a company, and simply think that all problems can be properly solved through friendly negotiation. Paying too much attention will damage the face and cooperative relationship of both parties, so they just regard the articles of association as a piece of paper for the company's establishment registration. However, with the continuous development of the company, there are more and more differences and disputes. At this time, it was discovered that the articles of association did not stipulate related issues and there was no mechanism to resolve disputes. Moreover, general enterprises often use the model articles of association provided by the industrial and commercial bureau to fill in directly when registering. Of course, there is nothing wrong with adopting a model, but the model is a common book and cannot be agreed according to the specific situation of each company. Therefore, it is necessary to examine whether there are contradictions in the expression of the will of shareholders and investors when the company is established when the company is registered by adopting the mode of articles of association. If all model companies are adopted, they may face the following legal risks: First, the articles of association of model companies are not formulated according to the company's own characteristics and actual conditions, but simply copy the provisions of the Company Law or similar provisions of other companies. The company law only establishes general rules or principles, but because each company has its own uniqueness, it is manifested in capital scale, shareholding structure, business scope and location. Every company needs specific autonomy rules that suit its own characteristics. The articles of association refine and concretize the general rules or principles established in the Company Law, and make detailed provisions on important matters and special circumstances of the company, which is conducive to corporate governance. However, the same articles of association can only be illusory and even harmful. For example, "standard articles of association" can't really reflect the true meaning of shareholders. Once there is a dispute between shareholders about the decision-making, capital, personnel and interest distribution after the establishment of the company, it is difficult for shareholders to safeguard their legitimate rights and interests according to the articles of association. Second, most of the model articles of association do not reflect the reasonable corporate governance mechanism, and can not play a forward-looking and preventive role in corporate governance at all. On the contrary, it sometimes becomes a bad constraint on the behavior of the company's operators and managers and increases the company's operating costs. If the company's articles of association do not stipulate the convening, resolution, personnel arrangement, execution mechanism and restraint mechanism of the company's institutional meeting according to the company's characteristics, it will lead to deadlock between shareholders and directors, shareholders and directors, shareholders and supervisors, directors and supervisors and senior management. The shareholders' meeting cannot be convened or a resolution cannot be formed, the resolution of the shareholders' meeting cannot be implemented, and the rights and responsibilities between corporate governance institutions are unclear. Third, the rights of shareholders are not fully reflected, and the rights and constraints of directors, supervisors and senior managers are unclear. When it abuses its rights, there is no basis for investigating the responsibility of the parties, that is, the articles of association do not really play the role of the company's "constitution."

Of course, the importance, characteristics and functions of the articles of association are all academic issues, so I won't go into details here. Aiming at the legal problems in the lawyer's articles of association, this paper puts forward some legal skills and risk points for your reference.

First, give full play to the autonomy of enterprise management and timely supplement the articles of association that can be bound by the company law. A prominent feature of China's newly revised company law is to respect the autonomy of enterprises and delete many mandatory provisions. Many important matters in the company's business activities, such as the company's business scope, the appointment of legal representative, the restriction of shareholders' rights, the legality of shareholders' resolutions, the determination of shareholders' share of capital contribution, the convening and voting procedures of shareholders' meeting, the formation of the board of directors, the functions and powers and rules of procedure, the rules of procedure of the board of supervisors, the procedures of equity transfer, the obligations and responsibilities of directors, supervisors and senior managers, etc., can be stipulated in the company's articles of association. Even if the provisions of the company's articles of association conflict with the legal provisions, the priority effect of the company's articles of association is recognized. This provides a legal basis for the personalization of the articles of association. Therefore, if there are differences in the company law or model articles of association when the company is established, it must be reflected in the articles of association. See 1 1, 12, 13, 16, 20, 22, 28, 3 1, 40, 42, 43, etc. of the Company Law. 105, 106, 1 13, 120, 124, 148, 149,/kloc

2. It may be agreed that a person other than the chairman shall be the legal representative of the company. According to the original company law, the legal representative of the company can only be the chairman of the company. However, in practice, it often leads to the dissatisfaction of the legal representative and the actual operator, resulting in management confusion. Therefore, if the actual investor, controller or major shareholder of the company is unable to serve as the chairman for various reasons, it may be agreed in the articles of association that the chairman or other executive directors other than the general manager shall serve as the legal representative. This protects the flexibility and unity of the company's control and management rights.

Three, it is not necessary to determine the profit distribution of the enterprise or the limited capital contribution ratio of the new capital according to the capital contribution ratio. If the shareholders of a limited liability company are unable to distribute dividends according to the proportion of their capital contribution for various reasons, or need to give special shareholders the right to distribute dividends and give priority to subscribe for new capital, it may be stipulated in the articles of association that the rights and obligations of shareholders shall not be fulfilled according to the proportion of their capital contribution, but the proportion shall be stipulated separately. In addition, if shareholders are willing to hold more shares in a limited liability company by continuing to subscribe for capital contributions, they may also stipulate the proportion of their priority subscription in the articles of association. This undoubtedly protects the different needs of different types of investors as shareholders of the company.

Fourth, the board of directors and the board of supervisors are more flexible. Due to the different business volume and scale of the company, the composition of the company's management organization should also be more flexible, giving the company the right to make independent decisions. The new Company Law stipulates that a company can choose the composition and scale of the board of directors and the board of supervisors in its articles of association. Among them, the board of directors of the limited liability company is 3 ~13; The number of members of the board of directors of a joint stock limited company is 5 ~ 19, and there are not less than 3 members of the board of supervisors of the company with a board of supervisors. In addition, for a limited liability company with a small number of shareholders or a small scale, you can choose not to set up a board of supervisors, but only 1 ~ 2 supervisors. For joint stock limited companies, the new company law provides two voting methods when electing directors and supervisors at the shareholders' meeting, that is, the company can stipulate in its articles of association or decide by the resolution of the shareholders' meeting to implement the cumulative voting system or the ordinary voting method of one vote per share.

Five, you can agree not to exercise the right to vote according to the proportion of capital contribution, and you can agree on a special voting method under special circumstances. Voting right is one of the core rights of shareholders, who can exercise control over the company through voting right. However, the company's capital contribution varies widely. If due to some special circumstances, the voting rights cannot be fully exercised according to the proportion of capital contribution, or the proportion of shares is special, such as 50% each, the voting rights will not be exercised. In these cases, the shareholders' investors may stipulate in the articles of association that they will not exercise their voting rights according to the proportion of their capital contribution, and give some shareholders special voting rights, or vote according to a certain proportion or be directly decided by some shareholders when they cannot vote. For example, it is stipulated in the articles of association that "shareholders do not exercise their voting rights according to the shareholding ratio, and one party holds more voting rights" or "ordinary resolutions of the shareholders' meeting need to be passed by more than half (including half) of the voting rights". Of course, when the company's articles of association do not clearly stipulate the way for shareholders to exercise their voting rights, they should exercise their voting rights in accordance with the provisions of the Company Law and in proportion to their capital contribution.

6. Shareholders may transfer their equity internally and externally without being restricted by the "majority consent" and "preemptive right" of other shareholders. According to the provisions of the Company Law, general shareholders are strictly restricted when transferring shares internally and externally. First, foreign transfer requires the consent of more than half of all shareholders. Second, other shareholders have the preemptive right under the same conditions. This provision mainly restricts shareholders from arbitrarily transferring shares to the outside world. But it also limits the way for shareholders to realize equity value. Therefore, on the basis of the original provisions, the new "Company Law" adds "Where there are other provisions on equity transfer in the articles of association, those provisions shall prevail". In this way, if the shareholders of the company are unwilling to be restricted by the transfer of foreign equity and want to realize free transfer as soon as possible, they can make corresponding provisions in the company's articles of association, which is also in line with the law.

Seven, shareholders can make a special agreement on the inheritance of the shares contributed. As the shares held by shareholders and investors belong to property rights, they can be inherited like tangible property such as houses, land, vehicles and deposits. If the shareholder's investor dies, his successor shall have the right to inherit his share of capital contribution. If the shareholders and investors of the company want to prevent this from happening and unfamiliar heirs become shareholders of the company through inheritance, then they can make special agreements on the inheritance of shares. For example, if shareholders and investors die, other shareholders will buy their shares, and their heirs will share the share price equally.

Eight, when the company's business scope changes, it shall promptly formulate amendments to the company's articles of association. According to Article 12 of the Company Law, 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. The company registration authority shall, according to the articles of association submitted by the company, approve the business scope in the company's business license. Therefore, if the company's articles of association are made at will, there may be cases where the actual business of the company is inconsistent with the business scope stipulated in the business license.

Nine, clear the amount and procedures of foreign investment and guarantee after the establishment of the company. Because the company's foreign investment and guarantee behavior will not only bring profits to the company, but also bring huge potential risks to the company. Therefore, the company law gives shareholders and investors more flexible space and power. Shareholders may, according to their own risk tolerance, stipulate in the articles of association in advance the limits and voting procedures of the company's foreign investment, so that the company's investment and guarantee activities can be carried out through the democratic decision-making of shareholders as much as possible, and the business risks can be avoided to the maximum extent.

X refine the convening procedures of shareholders' meeting and interim shareholders' meeting, and make detailed agreements on the dissolution of the company under special circumstances, such as major shareholders maliciously harming the interests of the company and minority shareholders. According to the regulations, shareholders should be notified fifteen days in advance when holding a general meeting of shareholders, and an extraordinary general meeting can be held if there are major issues. Therefore, the convening of the general meeting of shareholders is very important for the company's decision-making. If the major shareholders violate the interests of the company and avoid convening the shareholders' meeting, it will be very unfavorable to protect the interests of minority shareholders. Therefore, the method of convening an extraordinary shareholders' meeting can be stipulated in the articles of association in advance to simplify the conditions and procedures for convening the shareholders' meeting. At the same time, the company is an economic animal. While making profits for shareholders, it may also bring huge losses to shareholders due to internal contradictions and poor management. The company will be dissolved at this time. Especially when the major shareholder manipulates the company and maliciously harms the interests of the company and minority shareholders, it is necessary to dissolve the company to avoid the loss from expanding. Although the new "Company Law" stipulates that "serious difficulties occur in the operation and management of the company, and the continued existence will cause great losses to the interests of shareholders, which cannot be solved by other means, shareholders holding more than 65,438+00% of all shareholders' voting rights of the company may request the people's court to dissolve the company". However, because the dissolution of a company is an important matter related to the interests of all shareholders, creditors and other relevant personnel, in order to avoid differences in understanding the conditions stipulated by law, it is necessary for the company to make specific definitions of "serious difficulties in company management" and "other ways" in its articles of association according to its actual situation, so as to enhance the operability of shareholders' exercise of dissolution rights under certain conditions.

Xi。 The resolution can only be passed without the consent of the major shareholder or shareholders with more than half of the voting rights. If you vote in full proportion to the share capital contribution, it will be easy for major shareholders to manipulate the company, and the interests of minority shareholders will not be protected. Therefore, according to the provisions of the new Company Law, except for the resolutions of amending the Articles of Association, increasing or decreasing the registered capital and the resolutions of merger, division, dissolution or change of corporate form, the voting proportion of other matters can be agreed in the Articles of Association without the approval of shareholders with more than half of the voting rights.

12. Decide on the method of formation, authority and term of office of directors of the company's core team, such as chairman, vice chairman, general manager and senior management personnel. The chairman and vice-chairman are the core positions of the company, so the articles of association can be produced by election or appointment. The executive director and general manager are the core personnel of the company's operation and management, so they can also stipulate their terms of reference through the company's articles of association to prevent conflicts between investors and managers due to unclear division of power.