Matters needing attention in reviewing the Articles of Association:
1. The Articles of Association must be expressed in written form in the official language of the country;
2. The draft articles of association of a joint stock limited company shall be signed and sealed by all promoters;
3. The articles of association of a joint stock limited company established by offering shall be adopted by the founding meeting of the company and confirmed by signature and seal. The articles of association of a limited liability company and a joint stock limited company initiated and established must be signed and sealed by all investors;
4. Whether the number of shareholders meets the statutory requirements;
5. Mandatory requirements for special investors to set up a wholly state-owned company separately;
6. Whether the statutory capital limit of shareholders' contribution meets the legal provisions and the minimum statutory standards of special industries;
7. Review the mode of investment, especially the proportion of industrial property rights and non-patented technology investment in the registered capital of the company;
8. Review the legality of any content in the Articles of Association.
How to judge the validity of the articles of association?
The company's articles of association are legal, true and open, and there is no clear stipulation on the determination of the effectiveness of the company's articles of association in the Company Law. The articles of association itself belongs to the contract concluded for the establishment of the company and the standardization of the company's operation and management, and is the behavior of the * * * peers who set up the company. The so-called * * * reciprocal behavior, also known as multi-party behavior, usually refers to * * * and civil legal acts, which are legal acts established by most parties to express parallel meanings. The formulation of the articles of association itself means that it conforms to all the characteristics of * * * peer behavior, and the relevant rules of * * * peer behavior should be applied.
In view of this, we should apply the rules of civil juristic acts and contract identification in the Civil Code to judge the effectiveness of the articles of association. Specifically, we should pay attention to the following factors:
1, meaning is true or false. Since the formulation of the articles of association is an independent civil act, it should fully reflect the willingness of shareholders. Therefore, the authenticity of shareholders' wishes is the primary factor in the articles of association. If the company's articles of association are not the true expression of the shareholders when the company was established, of course, they are not binding on the shareholders.
2. Whether the formulation and revision procedures conform to the rules of procedure. Although the articles of association are not clearly stipulated when the company is established, as the basic system for generating other rules, it is necessary for the initiating shareholders to agree unanimously. Modifying the articles of association after the establishment of a company shall conform to the procedural rules stipulated in the Company Law and the articles of association. If it does not comply with the relevant procedural rules, the resolution of the shareholders' meeting to amend the articles of association shall be a revocable resolution.
3, whether the content violates the mandatory provisions of the law. A civil juristic act cannot violate the mandatory and prohibitive provisions of laws and administrative regulations, otherwise it is invalid. This is the general rule of the validity of civil legal acts. However, for the provisions of the company law, it should be noted that these provisions are divided into supplementary provisions and mandatory provisions. Supplementary provisions aim to guide the company to formulate relevant rules, and assume that the rules are applicable and optional when the company has not formulated them, while mandatory provisions must be so stipulated or set minimum standards, otherwise they will be invalid.
4, whether the content violates the national interests, collective interests, the legitimate rights and interests of others, whether it violates public order and good customs. These are the general rules for judging the legality of civil legal acts and should be applied.
The Articles of Association is a self-discipline criterion for companies to adjust their internal and external relations, and it is also a key document when a company is established. When accepting company registration, especially when reviewing the articles of association, the following problems often appear:
(1) is not serious about the articles of association. Some shareholders have a profound understanding of the Company Law and the Regulations on the Administration of Company Registration. They think that the articles of association are only formal materials needed by the registration department. As long as they get the business license, they will shelve the articles of association. Some were formulated by entrusted agents, and even the signatures of shareholders were signed by others.
(2) blindly copying the articles of association of others. Some choose to fill in the blanks through demonstration text or format text, forming a "fool's charter", which leads to a great discrepancy between the contents of the charter and the actual situation of the enterprise, and even blindly copies the terms such as the company name, which is not integrated with the actual situation of the company at all, and loses the company's autonomy norms and legal basis. Not only can it not play its role, but it is even completely unaware of its violation of the charter.
(3) The articles of association are unclear and incomplete. The items recorded in the articles of association can be divided into absolutely necessary items, relatively necessary items and arbitrary items: absolutely necessary items refer to the indispensable items that must be recorded in the articles of association, and the absence or illegality of any item in the articles of association will lead to the invalidity of the whole articles of association. The Company Law stipulates that the articles of association of a limited liability company shall specify the company's name and domicile, business scope, registered capital, names and titles of shareholders, the mode, amount and time of contribution by shareholders, the company's organizational structure and its formation method, authority and rules of procedure, the company's legal representative and other matters that shareholders think need to be specified. The relatively necessary recorded items refer to some items listed in the law, which can be decided by the framers of the articles of association. Once recorded in the articles of association, it has legal effect. If it is illegal to file or file, only the matter is invalid, and other matters in the articles of association are still valid, which does not affect the effectiveness of the whole articles of association. Obviously, the relative necessary items are not as important and meaningful to the company as the absolutely necessary items; Any recorded matters refer to matters that are not listed in the law. As long as they do not violate the mandatory provisions of the law, public order and good customs, they can be included in the articles of association according to actual needs. In the Articles of Association, these matters are as binding as other matters, and cannot be changed except by special resolution of the shareholders' meeting. If it is not recorded, it will not affect the validity of the whole articles of association. If it is an illegal record, only this item is invalid, and other items in the articles of association are still valid. In practice, some take a "take-away" approach and copy the registration model. In fact, there is only one executive director or one supervisor, and the company's board of directors or board of supervisors are also mechanically copied in the company's articles of association.
(4) The contents of the articles of association are not in conformity with the law. The articles of association must be legal, which is the premise of its entry into force. However, some companies make articles of association at will, rather than according to the company law. When the company elects or appoints its legal representative, it does not appoint the chairman (executive director) or manager as required, but appoints the supervisor, which is arbitrary. If the registration authority does not examine it carefully, the articles of association will be illegal.
Legal basis:
People's Republic of China (PRC) Civil Code
Article 76 A legal person is a profit-making legal person established for the purpose of obtaining profits and distributing them to shareholders and other investors. For-profit legal persons include limited liability companies, joint stock limited companies and other corporate legal persons.
Article 77 A profit-making legal person has been registered and established according to law.
Article 78 A legally established for-profit legal person shall be issued a business license by the registration authority. The date of issuance of the business license is the date of establishment of the profit-making legal person.
Article 79 To establish a profit-making legal person, the articles of association of the legal person shall be formulated according to law.
Article 80 A profit-making enterprise as a legal person shall set up a competent authority. The organ of power exercises other functions and powers as stipulated in the articles of association of the legal person, and elects or replaces members of the executive organ and the supervisory organ.