1. What is the nature of the articles of association?
The articles of association are the most important legal documents that stipulate the company's purpose (business scope), capital, organizational structure, behavior, name and other internal and external affairs.
(1) The nature of the articles of association shall conform to the nature of the company as a special social organization. Generally speaking, the current definition of a company, whether in civil law countries or common law countries, is generally based on static knowledge and understanding, emphasizing that a company is an organization and a corporate body. From the legal point of view, the company is an independent legal entity after its establishment. The company does not belong to any individual or group, but only to the company itself. Therefore, judging from the "gestation" process of the company, it is the "crystallization" agreed by the promoters on the basis of autonomy of will. However, once the company is established according to law, just like a born baby, it immediately becomes a "baby" (enterprise legal person) independent of the "mother" (initiator), and as an autonomous subject, it has an independent legal status. In a word, from the essence of this special social organization, the company is an autonomous institution based on consensus. The articles of association are important normative documents of the company, and its nature cannot be unaffected by the nature of the company.
(2) The nature of the articles of association should be determined by the formation mechanism of the articles of association. As a legal entity, a company belongs to a mixture of human cooperation and capital cooperation. Take the company law and other legal rules as the code of conduct, and exercise rights within the scope stipulated in the articles of association. The company law stipulates the general problems of company behavior, but it is impossible for the law to cover all the specific situations. The articles of association are legal documents formulated by the company according to the mandatory provisions of the Company Law, which can reflect the company's own needs and characteristics. The Articles of Association is a written document formulated by the promoters, which embodies the same meaning of all promoters and even all shareholders. Although countries all over the world have different classifications of matters recorded in the articles of association, they are generally composed of statutory matters and free matters, among which freedom is relative freedom, which is based on statutory matters and does not conflict with them. Therefore, judging from the formation mechanism of the articles of association, it not only flashes the wisdom based on the agreement of the promoters, but also contains the coercion of the law and the bold authorization of the legislators.
Second, the internal effect of the articles of association
The internal effect of the articles of association refers to the binding force of the articles of association on the company and its internal members. Article 11 of China's Company Law stipulates: "The articles of association are binding on the company, shareholders, directors, supervisors and senior managers." Therefore, the internal effectiveness of the articles of association includes the following aspects:
(1) Influence of Articles of Association on the Company
The binding force of the articles of association on the company is manifested in the binding force of the articles of association on the internal organization and activities of the company. First of all, the company has obligations to shareholders according to the articles of association, and these obligations are also manifested as shareholders' rights. Shareholders can sue the company when their rights and interests are infringed, so as to obtain their due rights; Secondly, "the company has obligations to the society (the third party) in accordance with the articles of association. The company's articles of association are regarded as the company's commitment to society, and the company has the obligation to fulfill its promised obligations in accordance with the articles of association, such as setting up an organization in accordance with the articles of association, using the company name determined in the articles of association, and acting in the manner stipulated in the articles of association. " In addition, the binding force of the company's articles of association is also manifested in the influence on the company's right ability and behavior ability.
(2) The influence of the articles of association on shareholders
The effect of the articles of association on shareholders is manifested in the arrangement of rights and obligations between shareholders in the articles of association, as well as the arrangement of rights and obligations between shareholders and the company and between shareholders and company managers. First of all, shareholders enjoy the rights stipulated in the articles of association. The personalized articles of association agreed by shareholders also endow shareholders with certain rights, and these rights recorded in the articles of association are also part of the shareholders' rights system. If the rights of shareholders are damaged, they can get relief according to the articles of association. Secondly, shareholders must fulfill their obligations stipulated in the articles of association. Just as the record of shareholders' rights in the articles of association is the basis for shareholders to exercise their rights, it is also the content that shareholders must follow.
(3) The effect of the articles of association on directors, supervisors and senior managers.
The articles of association provide an important basis for directors, managers and senior managers to exercise their functions and powers. For example, the eighth item of Article 50 of the Company Law stipulates that the manager of a limited liability company may exercise the functions and powers conferred by the company's articles of association; Article 1 14 stipulates that Article 50 also applies to the scope of authority of the manager of a joint stock limited company. For another example, Article 16 of the Company Law stipulates that the resolution of a company to invest in other enterprises or provide guarantees for others may be made by the board of directors entrusted by the company's articles of association. The company's articles of association restrict managers' behavior beyond their authority by clearly defining their authority; At the same time, the company can restrain the behavior of managers through the direct civil liability compensation clause in the company's articles of association.
Third, the external effect of the articles of association.
The external legal effect of the company's articles of association mainly refers to whether the company's articles of association have legal effect on third parties other than the company and the strength of legal effect. The external legal effect of the articles of association extends to investors, creditors and the public outside the company. The external legal effect of the articles of association is mainly manifested in the following two aspects.
(1) publicity effect
After the company's articles of association are registered, the contents related to transaction safety shall be publicized to the public. The first is economic ability. This is the material guarantee for the success and safety of the transaction, which determines the performance ability of both parties. The second is the business scope. The company's articles of association clearly stipulate the trading ability and qualification, and investors must first consider when choosing partners, especially when dealing with licensed and franchised products. The third is to publicly state the company's purpose and responsibility form. This provides more credit basis for investors and creditors to carry out economic exchanges with the company, which is convenient for the relative person to understand the company's organization and property status, and then promotes the economic exchanges between the company and the third party.
(2) the effectiveness of confrontation
If publicity is the law's protection for the bona fide third party who trusts the announcement or registration content, and the effectiveness of the company's articles of association registration is discussed from the perspective of protecting the bona fide third party, then the resistance is that the company opposes the third party with its registered items and discusses the effectiveness of the company's articles of association registration from the perspective of safeguarding the company's interests. However, due to the nature of the autonomy rules of the articles of association, although it has been registered, its resistance will still be limited. In my opinion, if the third person can prove that he has a legitimate reason not to know, the confrontation effect of the articles of association is not as good as that of the third person; When a third party trades, it is regarded as subjective malice to continue trading knowing that the other company has violated the articles of association, and the antagonistic effect of the articles of association extends to the third party. At this point, how to distinguish between goodwill and malice becomes the key. Usually, the standard to distinguish goodwill from malice lies in whether the other party has done due diligence. Pay attention to the level of obligation, on the one hand, we should consider the autonomy and standardization of the articles of association mentioned above. For example, in judicial practice, companies go beyond their authority to conduct transactions with third parties. Under normal circumstances, a company can't confront a third party without authorization according to its articles of association, unless the third party knows that the company has no such trading right when trading. The duty of care to the third party here is very low. On the other hand, we should consider the organizational form of the company. Generally speaking, the business scale of a limited liability company is smaller than that of a joint stock limited company, so the amount of business involved is smaller, the transaction process is faster and the quantity is more. However, the business transaction amount of a joint stock limited company is often very large, and the information transparency of the company is very high. For the safety of their own interests, the counterparty should know more about the company.
The internal effectiveness of the articles of association explains the subject of the articles of association and the source of its effectiveness from the perspective of internalization. This contract theory has a strong explanatory power to the internal form and operation mechanism of the company. For the external effect of the articles of association, the overall effect and authoritative position of the articles of association are emphasized from the perspective of externalization, so that the provisions of the external effect of the articles of association can better reflect the characteristics of autonomous law.
The above is my own legal knowledge about the nature of the articles of association. Thus, the articles of association have the basic characteristics of legality, authenticity, autonomy and openness. The articles of association, like the company law, bear the responsibility of adjusting the company's activities. As the basic principle of the company's organization and behavior, the articles of association are of great significance to the establishment and operation of the company. It is not only the foundation of the company's establishment, but also the soul of the company's survival.