Relationship between Shareholders' Agreement and Articles of Association
Shareholders' agreement is a document reached between shareholders to adjust their internal rights and obligations, which is mainly regulated by the Civil Code. According to the principle of privity of contract, the shareholders' agreement is only valid internally among shareholders, and the adjustment effect does not involve a third party other than shareholders.
The Articles of Association is a normative document that shareholders of a company must formulate in order to set up a company, and it is binding on the company, shareholders, directors, supervisors and senior managers. The articles of association are mainly regulated by the Company Law. After the establishment of the company, it basically belongs to the company's "articles of association" documents. According to the basic principle of commercial externalism, the company's articles of association are different to some extent. After registration and publicity, it has a certain adjustment effect on handling the relationship between the company and creditors.
Conflict between shareholders' agreement and articles of association.
In practice, when the terms of the shareholders' agreement conflict with the articles of association, we should distinguish between shareholders or between shareholders and a third person who reasonably trusts the articles of association, and distinguish between internal application and external application in specific application.
1, internal application
As mentioned above, the articles of association and the shareholders' agreement are not simple substitutes, but usually parallel. When the shareholders' agreement used to adjust the internal rights and obligations between shareholders conflicts with the articles of association, we think that we should explore the expression of shareholders' true meaning, rather than simply judge the applicability through the substitution relationship.
In order to avoid unnecessary disputes, it is suggested that shareholders make matters inconsistent with the articles of association through agreement, and it should be noted in the agreement that "this agreement shall come into effect as of the date of signature by all shareholders and will not be replaced or changed by the signing of the articles of association of the target company; If the Articles of Association are inconsistent with this Agreement, this Agreement shall prevail. "
2. External use
Externally, the articles of association, as a public legal document that clearly stipulates the most important and basic issues of the company, is the basic basis for the company, including creditors and other public to understand the company.
Since the shareholders' agreement is not a necessary document for industrial and commercial registration, it does not need to go through the public announcement procedure, so the shareholders' agreement has no "external" effect. When dealing with matters between shareholders and third parties, we should make judgments according to the relevant provisions of the registered and publicized articles of association. This is the inevitable requirement and full embodiment of commercial externalities and the trust interests of the third party.
Legal basis:
Article 12 of the Company Law of People's Republic of China (PRC)
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.
Projects that are required to be approved by laws and administrative regulations in the company's business scope shall be approved according to law.
Article 25
The articles of association of a limited liability company shall specify the following items:
(1) Name and domicile of the company;
(2) The business scope of the company;
(3) The registered capital of the company.
(4) Names of shareholders.
(5) The mode, amount and time of contribution by shareholders.
(6) The organizational structure of the company, its methods of formation, powers and rules of procedure;
(7) The legal representative of the company;
(eight) other matters that need to be stipulated by the shareholders' meeting.
Shareholders shall sign and seal the articles of association.