The Discussion Of The Effect Of Shareholder Agreement And The Article Of Association To The Exclusion And Application Of Company Law

The "company law" in China revised in 2005 has increased the arbitrary norms to a certain extent. In order to give the company wider autonomy, the corporation can regulate their internal operations according to the provisions of the company law, which reflects the respect and protection for the interests of shareholders, and also makes the commercial transactions more quickly. At the same time, the company also can carry out the provisions of the specific matters of the company through the shareholders’ agreement and the articles of association of the company, which enables the company to operate more aligned with its need of development.The shareholders’ agreement is signed by the sponsor before the establishment of the company, which can specify how to incorporate all parties contract, and its effectiveness and contracting. The articles of association is signed by the staff in the company including shareholders, directors, supervisors and senior management, even the other members who have not signed the articles of association and joined company later. The article of association is the root of all the company rules and regulations. The effect of the shareholders’ agreement is not bound to lose after the establishment of the company. It is the two run parallel management line along with the articles of association. In recent years, with the development of the company, the shareholders’ agreement has sprung in practice, and the articles of association have also been revised constantly with the change of company, which will result in the conflict of mandatory provisions of shareholders’ agreement, the articles of association and company law. In order to solve this kind of conflict, we should provide mandatory norms for the relation and difference between the shareholders’ agreement, the articles of association and the company law, and make it more suitable for the company.Apart from the introduction and conclusion, this article is divided into four chapters.The first chapter mainly defines the nature of the articles of association, there are three important theories in nature of articles of association according to law. They are contracts, charters and the laws of autonomy theory. The articles of association shall also affects its effectiveness for internal and external problems. Regulations come into force after sponsors’signature, and are binding on the behaviors of the sponsors. According to the articles of association, sponsors or shareholders enjoy the rights and undertake the obligations, which are rooted in the constitution. The article analyzes and makes a comment on the implementation status of the articles of association in China, and points out the shortcomings of existing articles of association.The second chapter elaborates the review of shareholder agreement, which are described in detail respectively from the sponsor’s definition and understanding, the nature of shareholder agreement contract and partnership characteristics. Then the article compares the connection and difference between shareholders’agreement and the articles of association, and clears the effect of the shareholders agreement after the register of the company. From the academic discussion "alternative" and "coexistence", the article triggers the conclusion that the shareholder agreement still should be legally binding if not invalid, change or cancellation of the case after the establish of the company.The third chapter focuses on the structure of the company law. The scholars have two doctrines, that is, "dichotomy" and "three parts" whose essence lies in the analysis of boundary problem of party autonomy in the scope of the company law. From this description, the article analyzes the limited freedom of shareholder agreement and the articles of association in company law. We mustn’t go against mandatory norms in company law, but we can refine and supplement weighted norms and supplementary norms in it.The fourth chapter reviews three cases about company law by court in 2013 and 2014. From the examples, we can have more comprehensive description of the shareholder agreement, the articles of association of the company to the company law, and the different understanding of the problem by higher and lower court. On this account, we can clear the relationship of the shareholders’agreement, the articles of association and company law again in the form of cases demonstration, also reflect the different understanding in judicial practice, and need effective judicial interpretation or guidelines to define it.Finally, the article makes the conclusion that the shareholders’ agreement won’t lose its effect necessarily with the establishment and registration of the company. Before its not being modified, altered and discharged, shareholder agreement and the articles of association are two management parallels of the company in the relationship with the company law. The shareholders’agreement and the articles of association can’t exclude mandatory norms of the company, but they can be refined to the legal provisions to make it clearer. At the same time, the shareholders’agreement and the articles of association can refine and supplement weighted norms and supplementary norms in it to make it more suitable for the development needs of the company.