According to the provisions of Article 82 of the revised Company Law. The statutory items in the articles of association of a joint stock limited company are: company name and domicile; The business scope of the company; Mode of company establishment; The total number of shares, the amount of each share and the registered capital of the company; The name of the promoters, the number of shares subscribed, the mode and time of capital contribution; Composition, powers and rules of procedure of the board of directors; Legal representative of the company; Composition, powers and rules of procedure of the board of supervisors; Measures for profit distribution of the company; Reasons for the dissolution of the company and liquidation methods; Measures for company notice and announcement.
It should be noted that the statutory records of the articles of association of the above-mentioned limited liability companies and joint stock limited companies are based on the provisions of the Company Law. Other matters that must be recorded in the articles of association as required by relevant laws, administrative regulations and departmental rules (it should be noted that the mandatory provisions of the articles of association can only be stipulated by laws and administrative regulations). For example, as stipulated in Article 13 of the Regulations for the Implementation of the Law on Chinese-foreign Joint Ventures, the articles of association of a joint venture shall include the following main contents: "The name and legal address of the joint venture; The purpose, business scope and duration of the joint venture; Names, countries of registration, legal addresses, names, positions and nationalities of legal representatives of the parties to the joint venture; The total investment and registered capital of the joint venture, the amount and proportion of capital contributions of all parties to the joint venture, the provisions on equity transfer, and the proportion of profit distribution and loss sharing; The composition, authority and rules of procedure of the board of directors, the term of office of directors, and the responsibilities of the chairman and vice chairman; The establishment and working rules of the management organization, the responsibilities of the general manager, deputy general managers and other senior managers, and the methods for appointment and removal; Principles of financial, accounting and auditing systems; Dissolution and liquidation; Procedures for amending the Articles of Association ". It can be seen that the understanding of the statutory records of the articles of association can not be limited to the requirements of the company law, but should focus on all laws, administrative regulations, government rules and other legal documents.
Except for statutory matters that must be recorded in the articles of association as stipulated by the Company Law and other laws, administrative regulations and departmental rules. Other matters recorded in the articles of association according to the situation of the enterprise and the needs of corporate governance are naturally arbitrary. The contents of any recorded items can be quoted from the contents stipulated by law (but not required to be recorded in the articles of association by law), and can also be determined by shareholders' agreement. According to the practice and revised company law, the arbitrary records of limited liability companies and joint stock limited companies mainly include: the rights and obligations of shareholders; The establishment and procedures of the shareholders' meeting (limited by shares); Measures for profit distribution of the company, reasons for dissolution and liquidation of the company, and measures for notice and announcement of the company (applicable to limited liability companies); The amount, method and limit of the company's external guarantee; The scope and restrictions of the company's foreign investment; Provisions on equity transfer of joint stock limited companies; Merger and division of companies; Rules for the disposal of relevant important property by the company; Qualifications of relevant personnel; Restrictions on directors and senior management personnel to operate or hold shares in the company; Principles of company financial management (not applicable to Sino-foreign joint ventures), company employment system, trade union system and workers' congress system; Ways for companies to fulfill their social responsibilities (such as donation and environmental protection). ), review and management of related party transactions, etc.
Secondly, the formulation of the articles of association.
It has been made clear above that the articles of association can be divided into statutory matters and arbitrary matters, and classified from the objects recorded in the articles of association. In my opinion, according to the relevant provisions of the company law, the specific provisions (contents) of the articles of association can be divided into mandatory provisions, authorized provisions (supplementary provisions), guiding provisions and arbitrary provisions.
The mandatory articles of association refer to the articles of association that are mandatory by laws and administrative regulations, and the statutory contents of the articles of association cannot be changed. Mandatory clauses in the articles of association can be divided into mandatory clauses in statutory records and mandatory clauses in arbitrary records. Mandatory clauses in statutory records refer to the items that must be recorded according to the law, and the contents of relevant clauses are directly stipulated by laws (laws and administrative regulations). If the functions and powers of the shareholders' meeting and the board of directors of a limited liability company are legally recorded, and the company law has clear and specific provisions on the functions and powers under this matter, the content is mandatory. The company's articles of association can only repeat the law when recording legal matters, and cannot be amended. If the functions and powers of the shareholders' meeting cannot be assigned to the board of directors. Another example is that the rules of procedure of the shareholders' meeting of a limited liability company are recorded by law, but according to the Company Law, the resolution of the shareholders' meeting to amend the articles of association or increase or decrease the registered capital must be passed by shareholders representing more than two thirds of the voting rights. The content of this clause is also a mandatory clause in the company's articles of association. Mandatory clauses in any recorded items mean that the contents of relevant clauses under non-statutory recorded items are directly stipulated by law. For example, the rules of procedure of the shareholders' meeting of a joint stock limited company are arbitrarily recorded in the company's articles of association, but the Company Law stipulates that the resolutions of the shareholders' meeting to amend the company's articles of association, increase or decrease the registered capital, and the resolutions of the company's merger, division, dissolution or change of corporate form must be passed by more than two-thirds of the voting rights held by the shareholders present at the meeting, which is also a mandatory provision in the company's articles of association.
The authorization clause in the company's articles of association refers to the clause explicitly authorized by the Company Law to be regulated by the company's articles of association. Similarly, the authorization clauses in the articles of association are also divided into the authorization clauses in statutory records and the authorization clauses in arbitrary records. One of the biggest changes in the revised Company Law is to give the company the greatest autonomy under the guidance of the concept of advocating company autonomy. The carrier of this autonomy is that the articles of association of the company are authorized by law, and the relevant operating and governance elements of the company are set according to the actual operating conditions of the company and the needs of the corporate governance structure. The revised provisions of the company law shine with the glory of this concept of autonomy in many places.
Below, let's introduce the contents of the company law that authorize the autonomy of the company's articles of association. Authorized by Article 12 of the Company Law, the Articles of Association stipulates the business scope of the company; Authorized by Article 13 of the Company Law, the legal representative of the company acts as the chairman, executive director or manager in accordance with the Articles of Association; Article 16 of the Company Law authorizes that a company investing in other enterprises or providing guarantees for others shall be decided by the board of directors or shareholders' meeting in accordance with its articles of association, which may limit the total amount and amount of investment or guarantee; Article 38 (11) of the Company Law authorizes the articles of association to stipulate that the shareholders' meeting of a limited liability company shall enjoy functions and powers other than those stipulated in the Company Law; Authorized by Article 42 of the Company Law, the notice time of the shareholders' meeting may be stipulated separately in the articles of association; Authorized by Article 43 of the Company Law, the articles of association may stipulate the way of exercising the voting rights of shareholders of a limited liability company; Article 44 of the Company Law authorizes that the articles of association may stipulate the discussion methods and voting procedures of the shareholders' meeting beyond the scope prescribed by law; Authorized by Article 45 of the Company Law, the articles of association may stipulate the method for selecting the chairman and vice-chairman of a limited liability company; Article 47 of the Company Law authorizes that the company's articles of association may stipulate the functions and powers of the board of directors other than those prescribed by law. Article 49 of the Company Law authorizes that the articles of association may stipulate the discussion methods and voting procedures of the board of directors beyond the statutory scope; Articles 54 and 56 of the Company Law authorize the articles of association to stipulate the functions and powers, discussion methods and voting procedures of the board of supervisors beyond the statutory scope; Article 72 of the Company Law authorizes that the articles of association may make separate provisions on the equity transfer of a limited liability company; Article 75 of the Company Law authorizes the articles of association to stipulate the business term and articles of association of the company; Article 76 of the Company Law stipulates that the company's articles of association may separately stipulate the succession of shareholders' qualifications; Authorized by Article 84 of the Company Law, the articles of association of the company may stipulate the matters related to the subscription of shares by the promoters of a joint stock limited company; Article 142 of the Company Law authorizes the Articles of Association to restrict the shares of the Company held by directors, supervisors and senior managers of the Company except as provided by law; Authorized by Article 148 of the Company Law, the Articles of Association may stipulate the loyalty and diligence obligations of directors, supervisors and senior managers of the company; Article 166 of the Company Law stipulates that the company's articles of association may stipulate the time limit for submitting financial reports. Article 167 of the Company Law authorizes that the articles of association of a joint stock limited company may separately stipulate the profit distribution ratio of shareholders; Article 2 17 of the Company Law authorizes the company's articles of association to stipulate the scope of senior management personnel. The above is the relevant provisions on the authorization of the articles of association after the revision of the Company Law, which can be said to involve all aspects of limited liability companies and joint stock limited companies. The Articles of Association will have corresponding legal effect on relevant subjects according to the corresponding provisions formulated after the authorization of the Company Law.
The guiding provisions of the articles of association refer to the provisions of the articles of association set according to the guidance of the general provisions of the Company Law. The characteristic of this clause is that it is not a norm of rights and obligations explicitly set by the company law, nor is it a norm authorized by the company law to formulate the articles of association, but the articles of association are formulated with reference to the provisions of the company law when recording related objects. That is, the company law provides a guide for the formulation of the company's articles of association, and sets the upper or lower limit. The articles of association of the company shall not exceed the upper limit or lower limit stipulated in the Company Law, unless otherwise stipulated in the authorized articles of association. If the registered capital and mode of capital contribution of a limited liability company are legal matters recorded in the articles of association, the articles of association shall comply with the upper or lower limits stipulated by the company. If the articles of association stipulate that the amount and mode of capital contribution shall not violate the provisions of "the initial capital contribution shall not be less than 20% of the registered capital" and "the statutory minimum registered capital", except for investment companies, the capital contribution period shall not exceed the upper limit of 2 years. The mode of capital contribution of a limited liability company shall not be set in any form other than physical objects, intellectual property rights and land use rights permitted by law, that is, it shall not be funded by means of credit or labor services. For example, the equity transfer of a limited liability company is one of the articles of association. When the company's articles of association stipulate this content, it can follow the specific procedures of equity transfer stipulated in Article 72 of the Company Law, or refer to the relevant matters of the company's preemptive right stipulated in this article of the Company Law. To sum up, the guiding clauses in the articles of association are formulated under the guidance of the Company Law, which are legal and effective without breaking the upper or lower limit set by the Company Law, and are legally binding on relevant subjects.
Arbitrary clauses in the company's articles of association refer to clauses that are completely set by the company according to the actual situation without violating mandatory laws, which are neither recorded by law nor authorized and guided by the company law. For example, the provisions on the order of conflict effectiveness of company-related documents, the provisions on the order of effectiveness between the articles of association, the register of shareholders and the establishment agreement, etc.
Finally, it should be explained that although the new company law gives the articles of association great autonomy, it does not mean that shareholders (promoters) can ignore the provisions of the law and turn a blind eye to laws and regulations when formulating the articles of association. 1998 The "dispute over the articles of association" between Dagang Company and Aishi Company fully shows that shareholders (promoters) ignore the provisions of the law and the articles of association will never take effect. Therefore, the autonomy of the articles of association is not without boundaries, but on the basis of observing laws and regulations, giving full play to the wisdom of shareholders is in line with the actual results. At the same time, when formulating the articles of association, we should also pay attention not to deprive shareholders of their inherent rights or deprive them in disguised form, so as to provide protection for shareholders to claim and realize their rights. At the same time, article 1l of the new company law stipulates that "the articles of association of the company must be formulated according to law" and the articles of association of the company must be registered and put on record. The Articles of Association is a legal document. Without effective articles of association, a company cannot be established and cannot be protected by law.
In a word, the articles of association are not a simple repetition of the provisions of the company law, nor are they useless legal documents. The formulation of the articles of association of the company shall conform to the actual situation of the company, reasonably adjust the relationship between shareholders and give full play to the effectiveness of corporate governance.