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Articles of Association Design of Shareholders' Qualification Inheritance in Limited Liability Company
Article 76 of China's current Company Law stipulates that the shareholder qualification of a limited liability company (hereinafter referred to as the company) can be inherited by the legal heirs in principle, unless otherwise stipulated in the articles of association, and the substantive and procedural contents related to the shareholder qualification inheritance are entrusted to the articles of association. However, looking through the standard text of the articles of association provided by the company registration authority, there is no provision for the succession of shareholder qualifications; Most articles of association that have been registered as limited companies have no content about the succession of shareholders' qualifications. Based on the blank of the articles of association and the simplicity of the current legal provisions, the succession of shareholders' qualifications is prone to disputes. This paper attempts to make a preliminary exploration on how to stipulate the succession of shareholders' qualifications in the articles of association, with a view to providing reference for the legal practice of succession of shareholders' qualifications.
First, the articles of association of the legal heir to inherit the shareholder qualification under the current law.
The provisions of Article 76 of the current Company Law give good consideration to the humanity of limited liability companies, the interests of old shareholders and the legitimate rights and interests of heirs. (1) That is, unless the company's articles of association exclude or restrict the legal heir from inheriting the shareholder qualification, the legal heir can inherit the shareholder qualification and become a shareholder of the company.
Accordingly, if all shareholders unanimously agree that the legal heir can inherit the shareholder qualification at that time, it can be clearly stipulated in the articles of association that whether the legal heir inherits the shareholder qualification after the death of the natural person shareholder shall be governed by the provisions of Article 76 of the Company Law; Or clearly stipulate that after the death of a natural person shareholder, all his legal heirs have the right to inherit the shareholder qualification without the consent of other shareholders. Take this as the unanimous expression of all shareholders to avoid disputes caused by other shareholders' objections to the succession of shareholders' qualifications after the succession begins. When the existing natural person shareholders have suitable heirs, the adoption of this provision can prevent the heirs from being rejected by other shareholders when inheriting the shareholder qualification.
Second, the articles of association are designed to exclude the legitimate heirs from inheriting the shareholder qualification.
Based on the human nature of a limited company, if other shareholders object to operating the company with legal heirs, they can make exclusionary provisions on the succession of shareholders' qualifications in the company's articles of association. In this regard, Article 76 of the Company Law allows the Articles of Association to make exceptions to the succession of shareholders' qualifications with proviso clauses. The succession of shareholder qualification will destroy the humanity of the company to varying degrees, and may be deadlocked because of the participation of new shareholders. (2) Therefore, excluding the succession of shareholder qualification in the articles of association not only involves protecting the interests of other shareholders of the company, but also helps to prevent the successors who do not meet the shareholder qualification from becoming shareholders of the company in the future, thus protecting the company's sustained and stable development.
The company's articles of association may stipulate that after the death of a natural person shareholder, his legal successor will not inherit the shareholder qualification, and the remaining shareholders of the company will buy back the inherited shares at a reasonable price according to the proportion (statutory, articles of association and capital contribution) negotiated or agreed upon, and the successor will obtain the property value of the shares held by the deceased shareholder before his death. This design is similar to that of western countries? Shareholders quit the club? . (3) The Articles of Association is an autonomous document and reflects the common will of all shareholders. When shareholders vote or sign the articles of association excluding the inheritance of stock rights, it means that shareholders have made prior arrangements for their own stock rights, which is similar in effect to the shareholders' disposal of their future inheritance through a will made public in advance. In this case, even if the deceased shareholder changes the provisions of the articles of association through his will, it is invalid, and shareholders and heirs must abide by the provisions of the articles of association. ④
Based on the variability of the company's performance and market conditions, it is impossible for the company's articles of association to stipulate the specific share purchase price in advance. However, the company's articles of association can stipulate the calculation method of the purchase price, for example, according to the amount of capital contribution, net assets, net assets plus the discounted value of the company's profit forecast, the present value of income and the actual market value, it can also stipulate that the company will be evaluated by an evaluation agency. However, the company must still meet the statutory minimum capital requirements, and timely handle the change registration of related matters and notify the company's creditors. ? Opening the legal door for shareholders to withdraw shares is an inevitable requirement to improve the company's humanity, a correction to the closed system of limited liability companies, and also embodies the basic spirit of freedom of contract in commercial law? .
Third, the design of the articles of association of the company that restricts the legitimate heirs from inheriting the shareholder qualification.
(1) Articles of association that restrict successors who do not meet the standards of shareholders from inheriting the qualifications of shareholders.
In order to safeguard the humanity of a limited company and prevent the successors who do not meet the shareholders' requirements from inheriting the shareholders' qualifications, thus affecting the normal operation of the company, it is necessary to make restrictive provisions in the articles of association, requiring the heirs to have full capacity for civil liability and capacity for conduct, their age, physical and intellectual conditions must be able to bear the responsibilities as shareholders of the company, their actions must ensure that the reputation and interests of the company are not damaged, and they must have the basic ability to make decisions and supervise the company's operations, otherwise they cannot inherit the shareholders' qualifications. In addition, it can also be stipulated whether shareholders who do not have the age and intellectual conditions can exercise their rights on their behalf by their guardians or entrusted agents.
(2) Articles of association restricting the legal heirs from directly inheriting the post qualifications of the deceased shareholders.
The qualifications of the inherited shareholders in the company include but are not limited to the positions of chairman, director, supervisor and manager. The qualification of shareholders depends on their contribution to the company and their mutual trust. More importantly, it depends on the intelligence, management ability and personality charm of shareholders. Therefore, the post qualification as a special shareholder qualification cannot be directly and unconditionally inherited. The heirs of the deceased shareholders can hold senior management positions of the company through the election of the shareholders' meeting and the board of directors by virtue of their true talents and practical knowledge.
In this case, when the company formulates its articles of association, it can further stipulate the succession of shareholders' job qualifications according to the proviso of Article 76 of the Company Law. For example, the successor of a deceased shareholder can inherit the shareholder qualification, but whether he can obtain the original senior management position of the deceased shareholder in the company needs to be determined after the consent or election of other shareholders (the proportion of consent can be stipulated) according to the company's articles of association and system.
(3) The articles of association that restrict several legal heirs from inheriting shareholder qualification.
In practice, if there is more than one' heir' of a deceased shareholder, it must be clearly stipulated in the articles of association whether the successor inherits the same shareholder qualification or obtains the shareholder qualification in proportion. The essence of equity division of limited company is the division of inheritance. The division of the estate requires the heirs to be assigned to their respective names according to the share of inheritance, and no longer have a share with * * * *. In practice, the heir requests to inherit the equity, in addition to obtaining the real right of real estate in the equity, it is more important to obtain the beneficial right in the equity, that is, to obtain the shareholder qualification and participate in the company's activities in order to obtain long-term benefits. Therefore, if the heir is required to own equity, it actually maintains the status of equity as an inheritance and does not solve the problem of equity inheritance. It can be seen that allowing multiple heirs to have one shareholder qualification is inconsistent with the provisions of the inheritance law and the purpose of inheritance, and should be restricted in the articles of association.
Accordingly, the articles of association may stipulate that if the deceased shareholder has more than one heir, and the number of shareholders of the company after the succession does not exceed the quorum, the company shall determine its shareholding share according to the successor's share of inheritance and register it as the company's shareholders respectively. In this way, each heir can independently exercise his rights of interest and * * * in accordance with the provisions of the Company Law, thus avoiding conflicts and differences of interest arising from the existence of * * *.
(four) the articles of association of the succession of shareholders' qualifications when the deceased shareholder's capital contribution is defective.
If the deceased shareholder's equity is flawed, will it affect the inheritance of equity, and then affect the inheritance of shareholder qualification? Academic circles also have different views on the problem of defective capital contribution by shareholders. In the field of equity transfer, there are positive, negative and eclectic theories about the influence of defective capital contribution on its transfer effectiveness. ⑥
According to the provisions of Articles 26, 28 and 84 of the Company Law, it can be seen that the Company Law allows shareholders to pay their capital contributions in installments within the scope and time limit prescribed by law. Accordingly, in practice, it is inevitable that natural person shareholders will not pay their capital contribution in full, and the defect of equity is inevitable. ? From the perspective of the company law itself, the defects of shareholders' capital contribution do not affect their equity in the company. So after the death of a natural person shareholder, his equity can become an inheritance? . ⑦ Therefore, the articles of association can stipulate that if the deceased shareholder has the obligation to make up the capital contribution to the shareholder who has paid the capital contribution in full and on time or needs to bear the liability for breach of contract, according to the principle of consistency of rights and obligations in the inheritance law, it shall be borne by the successor who inherits the equity, and the inheritance of the equity can still be carried out as usual. If the successor refuses to take responsibility, it shall be deemed as giving up the equity inheritance.
(5) The design of the articles of association of the company that restricts the inheritance of the shareholder qualification of dormant shareholders.
? In the case of anonymous investment, although the nominal investor is recorded in the register of shareholders, articles of association and industrial and commercial registration documents, it can only be said that it is presumed to be a shareholder internally and externally. Isn't this irrefutable? . That is, although the anonymous investor lacks formal evidence, if it can be proved that the person who actually contributed to the company is him rather than the nominal shareholder, there will be substantial evidence to claim shareholder qualification. If we can further prove that the company has actually recognized its shareholder status, we have the conditions to claim shareholder qualification. However, some scholars believe that? The effect of anonymous investment should not be recognized because it circumvents the law? . As far as the shareholders' rights and interests of dormant shareholders are concerned, Article 33 of the Company Law clearly confirms the qualifications of shareholders who are not listed in the articles of association and registered in the registration authority but recorded in the register of shareholders. In addition, in judicial practice, if the anonymous investor does have evidence to prove his actual contribution, he can also win the lawsuit of confirming the right in court, thus becoming a veritable shareholder. At this time, the shareholder qualification of anonymous shareholders can be inherited.
However, if the company's register of shareholders is not registered and is not confirmed by the court's effective ruling, the company's articles of association may restrict the inheritance of shareholder qualification of anonymous shareholders.
Four. Authorize other shareholders to decide whether to inherit the articles of association of shareholders at that time.
In order to avoid the premature exclusion of future heirs who may meet the conditions of shareholder qualification inheritance or shareholders who do not meet the conditions of shareholder qualification inheritance, the company's articles of association may stipulate that other shareholders may choose to make a decision on whether or not to agree with the legal successor to inherit shareholder qualification.
The company's articles of association may set the conditions and procedures for whether and how the legal heir applies for the qualification of heir, as an objective basis for other shareholders to choose successors. It is also possible to stipulate the proportion of other shareholders who agree with the successor to inherit the shareholder qualification according to the provisions of Article 72 of the Company Law on equity transfer, and other shareholders who disagree with the successor to inherit the shareholder qualification must purchase the inherited equity. The articles of association can also clearly stipulate the methods and procedures for determining the value of the inherited equity, which can be used as the basis for shareholders to purchase equity; To stipulate the way and time limit for the notice and reply of other shareholders to purchase shares, and to stipulate the conditions for losing rights if they fail to buy shares after the time limit, which shall be regarded as agreeing to inherit.
Where other shareholders neither agree with the successor to inherit the equity nor purchase the inherited equity, but require the company to pay the successor's equity transfer money by reducing the registered capital, they may stipulate that the reduction of the company's capital must go through legal procedures in accordance with the provisions of Article 178 and Paragraph 2 of Article 180 of the Company Law. The capital contribution of the decedent can be used as capital reduction (the remaining registered capital of the company must reach the minimum amount stipulated in the Company Law). After the capital reduction formalities are completed, the company will pay the reduced capital contribution to the heir as the equity price.
In view of the fact that the Company Law does not stipulate whether other shareholders can exercise the preemptive right in the succession of shareholder qualifications; At the same time, the legal heir does not need to pay consideration to obtain equity through inheritance. Equal conditions? No one can match it. Therefore, in the succession of shareholders' qualifications, there is no condition for other shareholders to exercise the preemptive right, and the articles of association can make provisions to exclude other shareholders from exercising the preemptive right.
Verb (abbreviation of verb) The procedural provisions of shareholder qualification inheritance
The succession of shareholder qualification involves a series of procedural problems. For example, whether the decedent himself is the legal shareholder of the company, whether the nature and quantity of his equity are clear, and the confirmation and notification of the death of shareholders; The qualifications of the successor, the certification materials of the inheritance relationship, and the application for inheritance by the successor; Whether other shareholders send notices to the heirs on inheritance matters, reply to the heirs' application for inheritance, make decisions and notices to agree or disagree with inheritance, exercise the preemptive right and go through various procedures to agree to inheritance, purchase the inherited shares that disagree with inheritance, whether the company's shareholder list and articles of association, other shareholders' consent forms and other formal requirements are complete, and the shareholders' change and equity transfer after inheritance. The handling of these matters requires many procedural rules. In this regard, the articles of association can set some special procedural provisions, or make procedural provisions at the same time as making substantive provisions.
The procedural provisions shall at least include the following contents: ⑩
(1) The way in which the heirs, shareholders and companies submit applications, replies, mutual notifications and other relevant subjects convey their wishes. For example, whether it is written or oral; Whether the written document is posted by ordinary mail, registered mail, express mail or announced in a specific media; Rules on mailing address, etc.
(two) the time limit for the expression of meaning between the above subjects. The company's articles of association shall specify the specific time limit according to the time required for the succession of shareholders' qualifications. Such as the time limit for the heir to file an application, the time limit for other shareholders to reply, whether to buy the inherited equity and exercise the preemptive right, and the time limit for paying the equity price.
(3) The consequences of the above-mentioned subject failing to inform the other party of his intention in the prescribed manner and within the prescribed time limit. On the one hand, it should be stipulated that if the party exercising the right fails to exercise the right within the prescribed time limit, it will bear the consequences of the loss of the right. For example, if other shareholders fail to reply whether they agree to inherit within the prescribed time limit, they are deemed to agree. On the other hand, it also stipulates that if the party who performs the obligation fails to perform the obligation within the prescribed time limit, it shall be liable for compensation. For example, if other shareholders fail to pay the equity price on time after purchasing the inherited equity, they shall compensate the economic losses of the successor. If the articles of association stipulate that other shareholders will decide whether the successor can inherit the shareholder qualification at that time, then the articles of association should also stipulate the following matters: First, whether the successor can obtain the shareholder qualification should be based on the submission of the application and the resolution of the shareholders' meeting; Secondly, the board of directors or the executive director of the company must also convene an extraordinary shareholders' meeting within a certain period of time to make a resolution on the heir's application for shareholder qualification, otherwise it will be regarded as agreeing to the successor's acquisition of shareholder qualification.
(4) The procedures and results of deliberation and voting by other shareholders of the company on whether the successor inherits the shareholder qualification.
1. The company's articles of association may stipulate the procedures for convening an extraordinary general meeting due to the death of shareholders. For example, referring to Articles 40 and 42 of the Company Law, if shareholders representing more than one-tenth of the voting rights, more than one-third of directors, supervisors or supervisors of companies without a board of supervisors propose to convene an interim meeting, an interim meeting shall be convened. When convening a shareholders' meeting, all shareholders shall be notified fifteen days before the meeting.
2. The articles of association may stipulate rules of procedure, which shall be deliberated by other shareholders to decide whether the successor will inherit the shareholder qualification.
(1) Other shareholders need to vote to decide whether the legal heir of the deceased shareholder will inherit the shareholder qualification.
(2) It is necessary for other shareholders to decide whether the legal heir inherits the shareholder qualification with a specific recognition ratio, which can be determined according to the number of other shareholders or the proportion of voting rights held by other shareholders.
(3) If other shareholders fail to inherit the shareholder qualification through heirs in a certain proportion, the shareholders who disagree shall purchase the inherited equity; Failure to fulfill the obligation of acquisition shall be deemed as consent to the successor to inherit the shareholder qualification. Of course, it should also be stipulated whether other shareholders exercise the preemptive right under the same conditions.
(4) According to the provisions of the Articles of Association, if other shareholders decide to agree or be deemed to agree to the successor's succession to the shareholder's qualification, the Articles of Association shall stipulate the handling of relevant procedures after the succession in accordance with the provisions of Article 74 of the Company Law, that is, the company shall cancel the capital contribution certificate of the original shareholder, issue the capital contribution certificate to the new shareholder, and modify the records of shareholders and their capital contribution in the Articles of Association and the register of shareholders accordingly. If the Articles of Association, the register of shareholders and the registration procedures for industrial and commercial changes are not amended, the successor shall not oppose a third party when obtaining the shareholder qualification.
(5) If the deceased shareholder has more than one heir, and the articles of association clearly stipulate that the successor can inherit, or if there is no clear stipulation, and the successor applies to inherit the shareholder qualification, and other shareholders make a resolution in accordance with the articles of association to agree to inherit, the procedures for determining the successor's share of inheritance shall also be stipulated in the articles of association. For example, after the heirs reach an agreement through consultation and sign and seal, they will go to the company to register the change of shareholders' register; Heirs can also go to the notary office to notarize the share of inheritance, and go to the company to register the change of the register of shareholders with a notarial certificate; If multiple heirs can't reach an agreement on the share of inheritance, they can solve it through litigation, and go to the company to register the change of shareholders' register with mediation or people's court judgment. After the successor obtains the qualification of shareholders of the company, the company shall cancel the capital contribution certificate of the deceased shareholder and issue a new capital contribution certificate to the successor shareholder for confirmation.
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