Yiliang agency bookkeeping: the company must know the matters that can be independently agreed in the articles of association.

In the past, people paid little attention to the company's articles of association and thought it was just a form. But now, the importance of articles of association as a company's "constitution" document is understood by more and more entrepreneurs, who hope to make full use of the authorization clause to design the articles of association that suit them best. The article shared today combs the authorization clauses in the company law, hoping to help everyone.

Compared with the original Company Law, the biggest highlight of the Company Law in 2006 is to fully respect the autonomy of shareholders' will, and many corporate governance issues allow shareholders to make their own decisions, which are clearly defined in the company's articles of association; The revision of 20 13 has further expanded the space of shareholder autonomy. These seemingly understated rule changes are decentralized and authorized, but they have important practical value. This paper summarizes and introduces the matters authorized by the Company Law to be freely agreed in the articles of association of the company, and briefly analyzes its practical value, so as to attract more attention.

I. Legal Representative

1, legal provisions

Article 13 of the Company Law stipulates that the legal representative of the company shall serve as the chairman, executive director or manager in accordance with the articles of association and shall be registered according to law.

2. Practical analysis

According to the corporate governance structure set by the Company Law, the board of directors is the highest decision-making body of the company management, and the chairman is the organizer and representative of the board of directors. The general manager (the term of company law is "manager", which is commonly used by the people and used in this paper, meaning "manager" in company law) is the organizer and executor of the company's operation. The legal representative is the person who represents the company according to law, and his words and deeds in the legal sense can be regarded as those of the company. Who is the representative of this company, the representative of the company's decision-making level, the chairman of the board, or the general manager of the executive level, is a matter that makes legislators very entangled. Finally, the company law decided to give the option to shareholders.

From a practical point of view, the significance of the legal representative lies in: controlling the major business activities of the company through the use of seals and the signing of documents; Conduct business on behalf of the company.

When deciding on the appointment of the legal representative, shareholders should generally weigh the following factors:

1) Trust and balance. From the perspective of power rank, the chairman is higher than the general manager, and the actual power of the chairman is greatly increased when the legal representative gives it to the chairman; When the status of legal representative is given to the general manager, the actual power of the general manager is greatly expanded because the company's operation is organized and implemented by the general manager, and it may also overhead the board of directors and the chairman. How to allocate the control right of the company's operation and management to the chairman and general manager needs the comprehensive consideration of shareholders.

2) The dispute of company control. The degree of participation and control in the company's operation is an issue that every shareholder attaches great importance to and should pay attention to. From a practical point of view, the factors that determine the company's control right are: the composition of the company's legal representative, directors, supervisors and senior management, the seal management of the company and its legal representative, the control of financial information and so on. Among them, the legal representative and seal are of great significance to the control right. When one shareholder nominates the chairman and another shareholder recommends the general manager, who will be the legal representative and who will nominate the chief financial officer will have a direct and significant impact on the company's control.

3) Identity characteristics of the chairman and general manager. When the chairman is elected by shareholders and the general manager is a professional manager recruited by the society, the general manager is generally not the legal representative. When the chairman and general manager do not meet the legal representative qualification (for example, they are blacklisted by the industrial and commercial bureau), they can only be held by the other party.

3. Suggestions for operation

It is clearly stipulated in the articles of association that the legal representative of the company is the chairman, executive director or general manager, and it is implemented at the position level, not a natural person, so as to avoid amending the articles of association due to personnel changes.

Two. Foreign investment and external guarantee

1, legal provisions

Article 16 of the Company Law stipulates that the company's investment in other enterprises or providing guarantee for others shall be decided by the board of directors or the general meeting of shareholders in accordance with the provisions of the company's articles of association; Where the articles of association stipulate limits on the total amount of investment or guarantee and the amount of individual investment or guarantee, it shall not exceed the prescribed limits.

2. Practical analysis

Investment is risky, so you should be careful in making decisions. External guarantee may cause the company to suffer heavy losses due to contingent debts. The company law leaves these two behaviors to the shareholders to decide for themselves, but it is required to be clearly stipulated in the articles of association. The clear contents include: whether the shareholders make their own decisions or authorize the board of directors to make decisions; Single investment or guarantee and total amount limit.

Considering that investment or guarantee may have a significant impact on shareholders' rights and interests, it is generally safer for shareholders to make their own decisions, that is, the shareholders' meeting or shareholders' meeting; When shareholders have enough trust in the board of directors, they can consider authorizing the board of directors to make decisions.

In addition, the decision-making autonomy of guarantee is limited to external guarantee. When the company provides guarantee for the company's shareholders or actual controllers, it must be resolved by the shareholders' meeting or the shareholders' meeting; And the shareholders specified in the preceding paragraph or the shareholders controlled by the actual controller specified in the preceding paragraph shall not participate in the voting on the matters specified in the preceding paragraph; The voting shall be passed by more than half of the voting rights held by other shareholders present at the meeting.

3. Suggestions for operation

Decisions on foreign investment and foreign guarantee can be explained in the functions and powers of the shareholders' meeting or the shareholders' general meeting or the board of directors; Can also be a separate article, specifically expressed. From the perspective of clarity, the author is used to independent articles and special expressions, and can even form a special chapter with other core concerns to reach an agreement. No matter what form, it is necessary to clarify the decision-making subject and investment limit.

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