On the company's articles of association on the function and its development trend (on)

Keywords: Law / Articles of Association / Company ChArter

Summary: Articles of Association the company has been able to become a "chArter", simply because the Articles of incorporation has a unique function from the perspective of the internal structure of the company, articles of association and independent personality is established cornerstone of the shareholders the basis of autonomy, is Company managers guide to action, from the company's external relations, the articles of association to protect the company interests of internal and external participants, to promote internal staff as well as the interface between the state and company, company organization and company Laws to protect the harmony and promote the company's legal system innovation as the company changes the Law, the Articles of Association of the function also changes the articles of incorporation corporate governance gradually evolved into "charter."


In modern society, the company controls the vast wealth of society, has become invisible empire, the modern market economy also known as "corporate economy." [1], without exception, whether common Law or civil Law countries, company law , there are provisions of the Articles of Association, whether on the giant companies or small companies, or even one-man company, established in the company must be legally established constitution, when the company articles of association rules cover the company from the establishment, operation to the dissolution of all aspects of the In a sense, the articles of association company law more than the key, then, why the provisions of company law in the constitution? As a social objective, and create the Economic miracle of the company, why the need to charter? Articles of Association which has functionality that allows companies and standardizing the legislation can not abandon it? This paper attempts to Two Schools of countries (regions of the articles of incorporation system for the background, from the company's internal structure and external relations the two angles, the company Articles feature and trends analysis.

First, why the company need to charter - based on the internal structure of the study

Establishment of the company charter must be developed, it is national (regional company law and corporate practice of the basic requirements and even scholars of the modern enterprise is a charter company, charter maintained by [2] Then, the internal structure of the company's articles of association and the company set up , operation, management process What is the role? from a sociological perspective, the company will first be considered "embedded" in social network structure of small networks of Economic organization [3] Therefore, within the company is a complex interpersonal networks, investors (shareholders, directors, supervisors, managers and employees and other internal stakeholders and by the composition of their shareholders (the General Assembly, the Board of Directors, supervisors, managers, etc., the company has a different status, played their role in essence, the company relationships network formation, in addition to the law by the company's corporate governance structure, operating rules and other regulations to guide the company, the Articles of Association also plays a central role in the main line and the company charter to become connected to each shareholder, shareholders with the board of directors, shareholders and the company, the link with company personnel.

(A company's perspective: The company was established with the cornerstone of an independent personality

As we all know, as a natural legal person created "special things" and "legal fiction person." We pressed further, since the legal person is a legal fiction, legal personality and how the performance of corporate "soul" What? Back in history, generally considered the modern enterprise, the company originated in medieval Europe, the Mediterranean coast since the 11th century, Western Europe Mediterranean commerce and the rise of urban artisans. out of the capital, Joint Staff, and reduce the risk of the actual needs, giving rise to a prototype of the modern company of three: the ship there, pieces of Daqi about health or organizations; family-owned body, or family business. [4] prototype of the three companies, and health pieces Daqi ship a total of about is actually a form of contract between the investors through the set up. "Genoa and Venice from these records it seems, the overseas trade of the two contracts is the most typical agent contract (Commenda and cooperation agreement (Societas Maris ... ... ". [5] In both contracts, the agreement includes investors formed a" business "purposes, rights and obligations, the distribution of profits and accountability methods, etc., which is a parallelism or for the common purpose of reaching agreement between the parties related to the total of the contract, [6] a ship there and Kang pieces Daqi about building a foundation or organization of investors in accordance with their contract agreement, the investors, the exercise of rights and obligations , take risks, and ultimately the purpose of the contract, so this contract is in a sense, the investors signed, as "a business or maritime cases," a common program of action based on this, if pieces of the ship there and Sport contract is the prototype of the modern company, the total of the contract is "Articles of Association," the first shape.

Stage set up in the company's franchise, franchise companies in the country (the king issued a charter for the company (Royal Charters charter constitutes the core of the concessionaire. This charter contains the company's business scope, legal staff, management and other authorized area, the real is a privilege, but notably, the concessionaire in the form of early, joined the company as a shareholder who is not a regulation of the charter to engage in corporate activities, but members who joined the company still own the stock and accounts in the business, and is independent of the company and other members of the bear management responsibility at this time of the charter did not play a regulatory role in the behavior of its members, shareholders, management behavior varied, different business objectives [7] based Hyundai set up the conditions - that the human element has certain shareholders or for the person initiating the elements of capital aggregation, behavioral elements of the Articles of Association [8] - obviously, only with the elements and objects, not acts of elements - - Articles of Incorporation - control of corporate conduct, the company exists only in the sense of form and only shareholder with a constitution based on the behavior of the common goal within the organization follows the same rules, the Company only has real value and characteristics of the modern company So members of the British East India Company to engage in acts of private trade was banned in 1692, bringing it closer to the East India Company, a modern company. [9] Since then, the doctrine set up stage in the company guidelines, the articles of incorporation to become a must have each set up a company elements of the form and substance of the elements in the United States, 1811 New York State enacted the Company Law, the abolition of the writ of the concession, while clearly established only through the establishment of the company's charter and license applications can be realized [10] and the 1819 U.S. Justice Marshall, "Dartmouth College case," the ruling found that: "Company is a Prepared, invisible, intangible, exists only in fiction of law among the ... ... it (the company owned only its constitution to create the property assigned to it. "[11] Based on this ruling, the company's creation as the constitution - invisible, intangible, exists only in the imagination of the law - have been given the basic, even You can fight the legal rights of its creators.

In modern society, the company entered into a charter aim to establish the institutional basis of the company set up to get the right capability and capacity, and standardizing the organization and behavior, the articles of incorporation of the company's external credit reference is internal to the corporate governance a direct basis. Specifically, the company's capital is a prerequisite for corporate legal personality of the material, articles of association provisions in the capital of the company's capital structure detailed records, the purpose is to determine the company's capital, making the total capital of the company clearly documented in the articles of association, the become a concrete, determine the amount of the Statutes, the total amount of capital required to be broken down to people, especially in the legal capital system, the company's capital up to the full recognition of all the shareholders or fully subscribed when the shareholder did not follow the terms of charter capital contribution or contribution is not real and threatening legal personality of the company, the company can own name based on provisions of the statute to require a shareholder to pay the company limited liability company's personality and character to distinguish the company's investor protection, the company has an independent personality of another a prerequisite in most countries, especially in common law countries, the articles of incorporation generally requires a clear record of company property liability provisions, through the company's Articles of Association records show that companies have the ability to independently bear civil liability to become independent of the civil subject. In addition, Articles of Association in terms of record company names to other companies the company's aim to distinguish the terms that the restrictions of corporate personality, and their rights and obligations of the company's records show that the composition of the body's tissue and the part of the rules of operation, so that the company has decision-making, implementation, strain the ability of the company to act as a natural person as independent and finally, national company law in the establishment of the company are generally clearly defined registration system, the company registered the most important is to sponsor the development of the Articles of Association registration [12] This is actually the country's personality through registration of the recognition. "Each state has a law requiring the company actually began in the presence or the date of filing the articles of incorporation, or certificate issued by the company began the day. Most laws also provide that in addition to sue by the state government, the (Secretary of State accepted the statute (or the company issuing the certificate of the fact that the company meets all the conditions before the formation of the 'certainty of evidence'. "[13] in the company After registration is completed, the company established its own independent personality can carry out business.

The existence of corporate personality is based on the company's articles of association. "Statute as a relatively independent things (Thing, is the control of the company's sources of power." [14] Therefore, the establishment of an independent personality in addition to state law and recognized outside , mainly through the charter of the items recorded in the company's internal and external relations shown, "the eventual formation of the Articles of Association is established in the company when the final character, and the former is the basis of the latter, the company is mainly reflected in the company's independent personality Articles on. "[15]

(B shareholder perspective: the basis for self-government shareholders

From a historical perspective of the development, the company was born first in company, first produced in company articles of association is also first mentioned earlier, the ship there and Kang pieces Daqi about the formation of contracts, investors are free to express themselves wishes, and game content on the contract, without intervention of state power, even when the company chartered, shareholder-cum-investors in the company's main sponsor is still the major suppliers and systems. "When a company can only be achieved special Act or charter in order to establish when the sponsor will be made in accordance with their own application, but the king decided by the legislative bodies or what they actually get in the theory, the statutory corporation and franchise companies indeed the case, However, in practice, the initiative has actually transferred to the sponsor, they prepare and submit their own motion or after their application to attach a draft constitution, although the author of these documents may be rejected or modified, the initiation of people wait until the results will be, or be completely rejected or approved in accordance with the wishes of the establishment of their own company. "[16] Since then, the 1720" Bubble Act "(the Bubble Act's introduction, for a long period of time with little joint stock company made to the establishment of charter in such conditions, the British businessman invented a use of trust, according to the "property custodian certificate"

To set up the company's approach [17] so that the number of companies during this period to develop in the "settlor certificate" - prototype of the Articles of Association [18] - again showing the shareholders to get rid of state control and self-government figure .19 century later, the company set up guidelines for stage, although the statute provides the standard corporate structure, but allows the articles of association and rules by the promoters of the company for their own institutional arrangements, namely, "the promoters have been given freely by their own desire to enter into corporate contractual rights. "[19] Therefore, the modern company law and to protect shareholders through the company's articles of association will achieve its" autonomous space ", shareholders of the Company Law to allow and encourage autonomous rule-making under the constitution to restrict shareholder between shareholders and members of other companies, and maintain company-cum-shareholders.

First, the articles of association the shareholders on the basis of autonomy to develop the company articles of association set up by the promoters of the company, through equal consultation and determine their content, raising the establishment of the corporation charter is subject to approval by the General Assembly established. Freedom of sponsors or shareholders agreed corporate purposes, capitalization, funding in the form, content and capital formation, etc. to be recorded in the company charter, the purpose of ensuring the company to build the material basis of clear and complete. initiators even in company law corporate governance model provided in this Select a record in the company's articles of association, [20] to regulate the company's basic organizational structure of shareholders on the basis of the consultation, select the directors of the company, and can name the first directors and other officers being recorded in the articles of association, [21] to strengthen the company's first director of the management responsibility when the public offering of shares of company sponsors the drafting of the Articles of Association, the General Assembly did not participate in the creation of charter drafting of shareholders can express their views freely and under certain conditions, amend the draft articles of incorporation, [ 22] in order to achieve the autonomy of all shareholders when the company's articles of association changes when at least half of all voting rights of shareholders under the charter or the number of shareholders present and voting a certain percentage of their voting rights by the majority, the proportion is far higher than the general requirements adopted by a vote matters. [23] to reflect the will of the minority shareholders the right to autonomy and to protect minority shareholders, some countries (regions with special emphasis on corporate law also limited liability company articles of association of more than half the number of shareholders required to modify consent, or even require the consent of all shareholders. [24] shows that, on the basis of Economic democracy in the articles of association by free will is a product of the shareholders, the shareholders of autonomy during the light flashes.

Second, the articles of association for the shareholders and implementation of the basic form of self-assurance in the modern corporation, the shareholders of the company's dominant shareholder-cum-self-realization, on the one hand the performance for shareholders through the development of the basic articles of association to determine the company's internal management rules, on the other performance benefits for shareholders of the right - select managers, the right to participate in major decision-making - the exercise. In addition, when the rights of shareholders are against the directors and other senior management personnel, the lawsuit is the last remedy. charter developed for shareholders in terms of a pre-planning and arrangement, shareholders of the exercise benefits, it is a matter of the intervention, and litigation is a relief after the protection. These arrangements and security in the company charter can find the rules and the basis for the constitution to become shareholders of the basic form of self-assurance and implementation Specifically First, shareholders (the composition and rules of procedure of the General Assembly mainly by the Companies Act, board of supervisors of the composition, powers and rules of procedure mainly by the corporate charter. [25] for the choice of company managers, company articles of association may provide for the qualifications of the directors, the number of the board of directors also need to make provision in the Articles of Association or in accordance with company Articles of Association to determine the manner prescribed for the company's senior staff, the typical terms of company law states the company only every officer "has the permission from the company's articles of association and should fulfill their responsibilities, or take in line with the company articles of association within the The Board's responsibility to determine, or assume under the direction of other senior staff to determine the responsibility. "[26] shows that the will of the shareholders based on self-rule in the statute to determine the company by statute to achieve the company's control.

Second, the total benefit of shareholders to exercise voting rights is achieved through, although national (regional companies to exercise voting rights laws are made in principle to the requirement that the shares have one vote each, or to exercise voting rights in accordance with the proportion of investment, but also allows the company otherwise agreed in the charter exercise of voting rights, for example, in the UK, they meet the company's articles of association, the company can make a satisfactory structure for the complex voting arrangements [27] In the United States, most states allow charter companies in the press create your own vote on their preferred mechanism [28] Therefore, the articles of association may participate in major decision-making rights of shareholders, adjusted and regulated so that shareholders prefer to design their own constitution based on the rules to achieve the company's control.

Third, according to company shareholders in addition to the direct violation of the law for their own interests to be actionable, the Two Schools of countries (most of the region's law allows the corporate charter provides for the protection of shareholder rights mechanisms, and shareholders can violate statute on the grounds of the company, directors and other senior management personnel litigation. [29]

(C manager perspective: guide the actions of company managers century Dutch East India Company set up, the center director Group (Board of Management to conduct direct charter by charter bound for the core content. [30] In the present, the United States <<Model Business Corporation Act>> Section 8.01, paragraph 2, and <<Delaware Law>> Article 141, paragraph 1 (and many other state law provides the basic responsibility of directors as: "all the company's right should be exercised by the Board and its authorized uniform, and all the company's business operations or affairs of the board of management should be in uniform under the guidance of, the Board required by the articles of incorporation of any limitations "." bound by the ... ... "( Subject to the terms is considered to be the articles of incorporation limit the scope of the powers of directors [31] the content of the articles of association set up throughout the company's purpose, organizational principles and scope of business operations and other aspects, the company managers engaged in business activities of the basic criteria. In addition, As the company's senior managers of the company bear the duty of loyalty and due diligence obligations, so when a violation of the duties stipulated in the articles, the articles of association for managers of company can sue based on this, my <<Law>> 11 stipulates: "Articles of Association of the company, shareholders, directors, supervisors and senior management personnel and binding."

With the company's development of the system, although the company is owned by shareholders, but the operating company is a director, manager and other senior managers. Berle and Means study showed that: in 1930 the U.S. 200 largest non-financial companies, Number of terms to the company in the "control of the operator" (Management Control [32] accounted for 44% of all companies, if the terms of the proportion of assets, are "the operator control" is as high as 58%. [ 33] with the company's ownership and control of phase separation with the company also appeared in the center of gravity of power transfer, reduce the power of the shareholders of the General Assembly, to strengthen the authority of the Board to pursue the rationalization and company efficiency. [34] In this regard, Obviously with the weakening of the power of shareholders, the shareholders will be subject to self-destruction of a virtuous state, the company is the owner of all of the basic concept of the capital was threatened, but in reality, the company was not completely out of the body's control of shareholders from the general view, corporate executives can still make investors-cum-shareholder company established in the direction of the operation of reason, the articles of incorporation as a guide for managers of the functions in this play a decisive role.

You can imagine, when the constitution was established to develop sponsors or shareholders of the Company, in addition to the company law of the authority, the face of the market's managers to shareholders will be given the appropriate management authority, but few shareholders will voluntarily give up control of the company right, or let this power out of their control from the beginning, even the formation of limited liability companies or shareholding when relatively concentrated Co., Ltd., as long as minority shareholders in the development of charter, it will not set up to develop the company's articles of association when give up the company the opportunity to influence future operations, because the development process in the Articles of Association, the sponsor is not a majority vote in accordance with the principles of capital to express their will, but as both co-funded much like the implementation of "one man one vote" in "joint decision." equality of bargaining in the sponsor during the game is conducive to the formation of a reasonable internal institutional arrangements, the future may be "internal control" and control of the company's major shareholders are able to arrange some of the constraints of the mechanism, for example, in United States, the number of directors of a company can be "specified by the articles of association or articles of association, or the charter or articles of association to determine the manner prescribed." [35] Articles of Association of the regular Board meetings are usually held to determine the time or form of a resolution to authorize the Board to determine the regular meeting date; articles of association and rules can also determine when the board of directors meeting attended ratio. [36] the rules of the Board of Directors Meeting In general, only the provisions of company law, and its detailed rules are present in the company's articles of association, or even shareholders in the company's articles of association or the board of directors choose not to limit the powers of the board of directors. [37] All of these countries (regional companies law on company directors, managers and other management personnel, legal norms, emerge out of everywhere "in the company's articles of association may provide," "except as otherwise provided in the Articles of Association" and other words. shareholders in the company's charter is entirely possible to establish the relevant provisions of the constraints authority of the Board, the Board in the statute pre-set behavior guidelines.

Second, why the provisions of company law statute - based on issues outside the company's study

Two Schools of the Articles of Association is the national (regional) company law provisions of the inevitable, but the company's emergence and development of the law often lags behind the company's practice in fact, produced before the Company Law, companies mainly rely on similar behavior of the Articles of Association file - the company free establishment phase of the recreational gold Daqi about and the company licensed the establishment phase of the charter, etc. - to regulate. [38] Therefore, the company's practice continues to develop, leading to standardize the company's articles of association system has matured, and based on the company practice Inspection system mature value of the articles of incorporation to be growing acceptance of early legislative or direct absorption of the company's articles of association of mature experience, and thus its development achievements of the Companies Act, therefore, some scholars have proposed "... the legal constitution of autonomous behavior - produced a Law. "[39] Perhaps it is based on this" history "in modern countries (regional company law provisions of the charter is an essential element.

(A) the safety valve function: to protect the interests of the company involved and the expected safety

Law is a response to real life, many of the legal system are expected to protect the rights and safety of [40] contemporary corporate legal system is no exception, the general provisions of the articles of association of legal system protect the rights and guarantees the same expected value of security effect on the one hand, the provision of public goods, the state has an absolute advantage in the use of state practice can be a positive experience and the articles of incorporation through the court system the case heard in thousands of articles of association of the company encountered problems and solutions to summarize summarized, and translated into public goods to be reflected in the legislation because of provisions of company law provisions of the statute is a million times, "trial and error," the lessons learned, participants can meet the requirements of most companies. most importantly, by the State rather than the constitution of any party responsible for the development of the standard provisions of the Articles of Association of the design is often based on national security and operational development of the company's point of view the balance of interests, so that the system, including charter companies, including the legitimacy of the legal system itself and the other hand, Although the parties involved in the development of charter companies will try to consider carefully in advance, but the statute covers a wide range and effectiveness of long-term, limited to companies to participate in all the information was incomplete, ill-considered and other reasons, it was not exhaustive or the articles of the textual representation is not clear, understanding of different parties, so the content of articles of association may exist "gap." The company law provisions in the charter system can be arranged through the law to prevent the advance of the comprehensive "gap" exists to protect the company's health and safety. Some countries (regions, such as the United Kingdom, the United States and China and Hong Kong, followed by a demonstration in the company law of the articles of incorporation sample for select companies to participate in the parties. [41]

In practice, the articles of incorporation also provides a substantial ink directors, supervisors, managers and other senior managers of the faithful and due diligence obligations, the obligation of confidentiality and the prohibition of unauthorized obligations and requirements under the tenure of directors because of their allowed to leave the company due to loss of liability, [42] objective function to prevent acts of directors for the company-cum-shareholders with conflicting interests and abuse of corporate control, damage the company and shareholders. In addition, the national (regional company law, directors and other senior managers to implement the company duties in violation of laws, administrative regulations or the articles of association, the loss caused to the company, shall be liable, the directors and other senior management personnel who violate laws, administrative regulations or the articles of association, harm the interests of shareholders, shareholders can bring to the court litigation of these functions is to rely on the provisions of the Articles of Association to prevent the abuse of authority within the company, prior to play the role of preventive and remedial.

The formation of the company's articles of association by the drafting of the participants, but the players most likely to be overlooked is the future of company creditors and other non-charter in the interests of the drafters. In order to balance the interests of the parties to the company and maintain its security, national (regional companies have clearly defined laws, articles of incorporation with the characteristics of openness. [43] the legal significance of the Articles of Association is open: first, to facilitate the shareholders aware of company circumstances, the exercise of the law of the company's supervisory authority, and second, to facilitate the full exercise of the creditor's claims in order to protect their legal rights; third, to facilitate public understanding of the company, whether its investment to provide a reliable decision-making. [44] to creditors of the company, for example, if the transaction counterparty is a company, do not understand the strange trading company in the case of past transactions credit check after all, a charter company registration method to prevent risks, particularly in the implementation of the legal capital system countries especially because "filled with all kinds of capital market transactions in the form of any transaction participants attention is bound for the trading partners of the various terms of trade and financial viability, such as how the availability of financial viability and credit relative wishes must pay to obtain information, namely information search costs will reduce the company's articles of association to be registered publicized search for the information relative to transaction costs. "[45] recorded in the articles of incorporation of the company's aim is trading capabilities and eligibility requirements, traders When the choice of trading partners - especially, monopoly product transactions - must be their first consideration is to determine the company's capital is an important factor in its performance capabilities, if the company does not fit with the ability to perform the transaction, will make traders into a disadvantage. [46] In fact, the articles of association of these records, potential investors on the company's security is also applicable. charter documented corporate purposes, the amount of registered capital and shareholding structure and other matters, will help potential investors were to judge the future development of the company. Obviously, the articles of association is the company's external credit certificate course, though with the national (regional company law "ultra vires" principle of the amendment and compromise capital system, the use of authorized capital system, companies Articles of foreign credit that has compromised the efficacy, but this does not erase the articles of incorporation of security features, which is also Germany and other countries [47] is still the current law provisions until the articles of association or articles specified in the law on the press to notice the reason why the form of publicity.

(Two-connected functions: to promote the company's internal staff as well as the interface between the state and

The court held that the United States, there are three companies in the legal relationship: the government and companies, between companies and shareholders, and shareholders, relationship [48] relationship between these three interconnected and jointly promote the development of the company it? Company as a for-profit business, it is organized according to the rules and the property. So, an independent investor, independent property, is to connect them together and become such a high degree of autonomy of the organization's body of it? "is the company's very existence constitution, "[49] This thesis provides us with a basic idea of ​​the company articles of association with the" connected device "function, it is not only connected to the shareholders, between shareholders and companies, shareholders and directors and other senior managers between other kinds of relationships, but also on the connectivity of the macro-relationship between countries and companies.

Look at the relationship between the shareholders, shareholders of the company charter is the result of collegiality in theory, on the one hand collegiate colors directly reflects the cooperation that, in order to achieve common interests, under the guidance of the concept of unity through cooperation and mutual access to each other to achieve "positive-sum game." Articles of Association of the color of this cooperation as follows: First, shareholders in the law and the Articles of Association to establish the basic governance framework of interdependence, common plan, all profit will promote the realization of the second, distribution of the memorandum of association of shareholders, directors and other members of the rights and obligations within the company, to promote active cooperation of members within the company, effective monitoring of the implementation on the other hand, the effectiveness of a collegiate charter sustained in the time dimension of the survival statute, the shareholders may change will occur and the changes in the shares, but in any case the Articles of Association are binding on all shareholders, the company remains a complete, state of development in the organization.'s constitution to become shareholders of investment companies and insurance companies to organize the presence and development of a source of cohesion.

From shareholders and company directors, supervisors, managers and other senior managers to see the relationship between, the company manager, for example, company law does not require the general manager's duties and authority company officers permission to carry out their responsibilities should be the rule from the company Articles of Association the company articles of association rules to give shareholders of the company-cum-power company and its senior managers to monitor the link, company directors and other management personnel is based on the law and the Articles of Association agreed to bear on the company-cum-shareholders' duty of loyalty "and" diligence obligations. " Employees with the company's connection point, the performance of the company's articles of association have, such as Germany's "employee participation system", that is the law in a certain size company's supervisory board must have a certain proportion of employee representatives.

State connection point between the companies is also in the articles of incorporation .1819 Justice Marshall in "Dartmouth College case," the ruling found that the company's charter is signed between the company and the state government contract, the state government shall not unilateral damage to the contract. [50] In modern society, national (regional company law provisions of the Articles of Association are a prerequisite for registration for the company one of the charter include the company law matters absolutely necessary records, and any matters relative to the necessary records record matters, its all the mandatory provisions of law shall not conflict with the company registration authority to review the articles of incorporation and company registration, the actual transaction to safeguard the state security, regulate the company's organizational structure to ensure orderly development of the company by external examination. Therefore, the effect of the articles of association must register with the state expected the company to establish a harmonious order of the internal fit, even after the establishment of the company, the state may regulate by the articles of association of the organization to achieve the company's control, for example, many U.S. states in corporate law are clearly provides that "any state licenses issued by them, are entitled to be modified in the future," that the state intervention and regulation of corporate affairs is precisely the connected pipeline review the company's charter license issued after registration, if the company's license be modified, amended articles of association means that in addition, countries can also amend the legislation relating to the company's articles of association, the company's behavior intervention or regulate the company's articles of association of legal rules, like a country in the hands of a kite line, the state constitution can increase or decrease in the absolute necessary items recorded and the records of charter provisions authorized the company to achieve the regulation of, for example, in 1986, the United States <<Delaware Law>> Section 102 modified to authorize company can amend the company charter, the directors to cancel or limit personal liability for monetary loss ... ... Delaware thousands of companies immediately under the new law change their articles of association. [51] And when Enron, WorldCom of the company's scandal angered when American society, 2002 <<Sarbanes - Oxley Act>> Through a series of mandatory requirements to strengthen the company's regulatory provisions, the Articles of Association no longer allowed to cancel or limit the personal liability of directors , [52] there articles of association conflict with the contents of the new bill would face the need to modify the situation.

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Articles of Association to shareholders, senior managers and other connections as a whole, form the basis of the company organization, company articles of association state and in turn connected to the formation of the state's control and supervision of a pipeline. All of these articles of association as the company organization The "Charter"

Play a variety of relationships within the company, internal and external relations of the "connectivity" function, the system reflects the unique value of the articles of incorporation.

(C lubricant functions: to protect the company organization and company law and to promote the company's innovative and harmonious

With the modern social and Economic development, the company as the most active and influential market players, its amazing speed of change: an endless stream of innovation within the company, the company presents a vastly different personality, but "the affairs of the Company Law often does not belong to high-priority problem, because they tend to essentially non-political and is less likely with the government feeling the need to immediately resolve the crisis. "[53] In the United Kingdom Companies Act, for example, its development in 1856 After 1862, 1908, 1929,, 1967, 1976, 1980, 1985, 1989, to modify or re-enacted many times, still in use. [54] Companies Act changes the speed of Economic development compared word is clearly lagging behind, although in recent years around the world (region showing a modification of company law, "you Changba me on stage," the scene, but the existing company law changes, but the reality is the development of the company's initial response to it, even in is considered the most developed legal system and the company's most timely amend the United States, scholars have also acknowledged the law is far behind practice, however, the company's undistributed and legal lag does not become the shackles of corporate organizational development.

In company law, to "in the company's articles of association may provide," "except as otherwise provided in the Constitution" and other forms of any provisions exist in large numbers, are authorized to rule on the company's articles of association can make their own arrangements, so Although the two companies are based on completion of the formation and operation of company law, but its specific institutional arrangements in the relevant articles of association may be due to differences in design and distinctive to a unified company under the legal regulation of the Company to create ever-changing body of For example, U.S. companies generally set up, CFO and other jobs, not law, and "Unilever" companies to follow suit, chairman of the Roman consul to implement the dual system, nor is the law of these special arrangements are often出现在公司的章程之中,这些丰富多彩的制度安排恰好弥补了公司法律的不周延性与滞后性,使得公司组织能够适应市场经济的发展与变化.所以,公司法律为公司组织设计了一个制度框架,在不破坏法律权威的条件下,将千变万化、大小不一、形态各异的公司稳定地置于公司法律框架之中,而公司章程的"润滑剂"功能,将这种理想变成了现实.[55]

此外,股东依其需要在公司章程中作出特殊的制度安排,当这些特殊安排被公司越来越多地采用时,国家往往会将这些规则吸收进入公司法律,使普遍化的章程规则进入国家的法律体系之中.[56]所以,在历史上,公司章程自治行为的法律化促进了公司法律的产生,公司法律规范着公司章程的制定、修改,章程"与时俱进"的灵活性又在成功实践的基础上影响公司立法,从而在公司立法与公司章程之间形成良性的互动关系.这种互动关系在美国<<特拉华州公司法>>中表现得最为明显.特拉华州公司法律以不确定性著称,法律中采取大量的授权性规范,授权公司可以在公司章程中依据自身需要作出必要的安排.由于公司章程的灵活性,许多公司章程中自主设计的反收购措施被普遍适用,并通过司法判决使之得到确认并逐步被公司立法所吸收,[57]公司章程对公司规则的灵活设计导致纠纷的复杂化,吸引了越来越多优秀律师和法官的参与,司法实践对于公司章程设计的检验与认可进一步推动公司立法的发展与完善.[58]

[Primary reference]
1.Robert W.Hamilton,The Law ofCorporations,(4th edition,Los Angeles:West Group Publishing,1996.

2.Paul L.Davies,ed,Gower'sPrinciple ofModern CompanyLaw,(6th Edition,London:Sweet&Maxwell,1997.

3.Frank H.Easterbrook and Daniel R.Fischel,The Economic Structure ofCorporate Law,Harvard University Press,1991.

4.史际春:<<企业和公司法>>,中国人民大学出版社2008年版.

5.[日]大久雄:<<股份公司发展史论>>,胡企林等译,中国人民大学出版社2002年版.

6.温世扬、廖焕国:<<公司章程与意思自治>>,载王保树主编:<<商事法论集>>(第6卷,法律出版社2002年版.

7.邓峰:<<作为社团的法人:重构公司理论的一个框架>>,载<<中外法学>>2004年第6期.

[1]参见刘俊海:<<公司的社会责任>>,法律出版社1999年版,第15页.

[2]参见江平:<<公司法与商事企业的改革与完善>>(五,载<<中国律师>>1999年第6期.

[3]参见席恒、李鼎新:<<公司治理的社会学分析:结构与功能>>,载<<人文杂志>>2002年第2期.

[4]参见史际春:<<企业、公司溯源>>,载王保树主编:<<商事法论集>>(第1卷,法律出版社1997版,第51-52页.

[5]这里所谓的代理契约(Commenda和合作契约(Societas Maris实际上就是前述康枚达契约或组织与船舶共有.[英]MM波斯坦、EE里奇、爱德华.米勒:<<剑桥欧洲经济史>>(第3卷,周荣国、张金秀译,经济科学出版社2002年版,第页.

[6]共向契约的说法最早见于1892年德国法学家康采发表的<<协同行为论>>,是指两个或两个以上的具有并行性或共同性的意思表示的一致,最典型者为设立社团的行为.在共向契约中,当事人约定的不是相互之间做某事,而是共同去做某事,各当事人订立的目的是相通的.参见周林彬主编:<<比较合同法>>,兰州大学出版社1989年版,第79-80页.

[7]以英国东印度公司为例,当1600年东印度公司获得特许状并垄断对印度贸易权利之时,该公司成员既可以从事私人贸易,也可以认购任何数额的公司"联合股份"(Joint Stock,联合股份和由此而产生的利润在每次航海结束后(后改为按一定期限在认购人之间分配.当时的东印度公司"只有船舶是共有的,贸易资本还是个人的,仿佛是以一种组合公司的形式在进行贸易.在1612年,各个人的资本才合为共同资本."参见[英]亚当.斯密:<<国民财富的性质和原因的研究>>(下卷,郭大力、王亚南译,商务印书馆1974年版,第308页.

[8]郑玉波:<<公司法>>,三民书局1981年版,第155页.

[9]参见朱慈蕴:<<公司法人格否认法理研究>>,法律出版社1998年版,第7页.

[10]参见注[9],第11页.

[11]Trustees of Dartmouth v. Woodward,17 US(4 Wheat. 518,636 (1819.

[12]例如,<<美国示范商事公司法>>第2.03条第1款规定,当一个公司在州务卿处将公司章程注册备案之日起即开始存在,英国公司法也认为,章程的注册造就了一个新的公司实体.

[13]Robert W.Hamilton,The Law of Corporations,(4th edition,Los Angeles:West Group Publishing,1996,p.93.

[14]邓峰:<<作为社团的法人:重构公司理论的一个框架>>,载<<中外法学>>2004年第6期.

[15]温世扬、廖焕国:<<公司章程与意思自治>>,载王保树主编:<<商事法论集>>(第6卷,法律出版社2002年版,第4页.

[16]Paul L Davies,ed,Gower0 s Principle of Modern Company Law ,(6th Edit ion ,London:Sweet & Maxwell,1997,p.3.

[17]通过"财产托管证书",将公司财产权委托给一个独立的受托人团体进行管理.通过这种信托契约,一方面可以为不参与经营的认股人提供风险责任的限定条件,另一方面也可以使受托人以公司的名义进行活动、起诉和应诉.See note[16],pp.28-31.

[18]参见张开平:<<公司权利解构>>,中国社会科学出版社1999年版,第261页.

[19][美]伯纳德.施瓦茨:<<美国法律史>>,王军等译,中国政法大学出版社1990年版,第222页.

[20]例如,就股份有限公司而言,法国法规定了两种可供选择的公司治理模式:传统上的单层制模式和1966年<<商事公司法>>借鉴的德国双层制模式.法国<<商事公司法>>第4章第3节"股份有限公司的领导与管理"之第1小节"董事会"(第89条至第117条规定的是类似于英美法系国家的单层董事会治理模式,其第3节之第2小节"经理室和监事会"规定的则是双层公司治理模式.法国<<商事公司法>>第118条规定:"任何股份有限公司的章程,均可规定,该股份有限公司由本小节(第2小节的规定调整.在此情况下,公司仍受适用于股份有限公司的全部规则约束,但第89条至第117条规定的规则除外."该规定确立了由公司章程对公司治理模式进行选择的制度.在日本<<公司法>>中也有类似的规定.

[21]例如,法国<<商事公司法>>第88条,美国<<示范商事公司法>>第2.02条第2款.

[22]对于创立大会,有些国家公司法规定,创立大会的决议,应以出席大会的认股人的2/3以上表决权并以被认购股份总数过半数的多数来通过或以在创立大会行使表决权的设立时股东表决权的过半数且以相当于出席会议的该设立时股东表决权的2/3以上多数做出(如韩国<<商法>>第309条,日本<<公司法>>第73条第1款.而创立大会可以直接做出接受章程、章程修改或设立废止的决议(如韩国<<商法>>第316条第1款,日本<<公司法>>第73条第2、3、4款和第96条,法国<<商事公司法>>第79条.

[23]实际上,在公司出现以后很长一段时间,甚至在公司法发展的早期阶段,公司章程的修改需要全体股东的同意方为有效.但如此规定必然导致公司章程修改的困难并引发公司僵局的出现.为了充分发挥公司制度在经济发展中的作用,从效率角度考虑公司章程修改的规定逐步演化为采取"资本多数决"原则进行.但有些国家公司法律对于特殊事项的改变,仍然规定须经全体股东同意方可为之.例如,法国<<商事公司法>>第60条规定:"未经全体股东一致同意,不得改变公司国籍".德国<<有限责任公司法>>第53条第3款规定:"只有经全体参股股东同意,方可对增加股东的依照公司合同(章程必须承担的给付作出决议".日本<<公司法>>第110条规定:"修改公司章程,作为其发行的全部的股份内容,设置就第107条第1款第3项所列事项的公司章程规定,或就该事项修改公司章程的场合,须得到全体股东的同意".

[24]例如,德国<<有限责任公司法>>第53条第2款规定:"公司合同(章程的变更决议必须经公证人制作成公证书,并且必须以投票的3/4多数通过.公司合同(章程还可以设定其他条件."
[25]以英国为例,其公司法律中很少直接规定公司的具体事项,且不规定股东大会和董事会之间的权力划分和具体权利的内容,不规定董事和高级职员的权利义务,它甚至不规定董事应由股东大会选举或任命产生.有关股东大会的一般规定以及股东的投票权等,也不是强制性规范,而多采取推定适用规范,即只有公司章程没有相反规定时才适用.因而,对于公司内部的具体管理制度,公司法除了明确规定股东大会有权以普通决议辞退董事以外,可以说大多留给了公司章程来具体规定.参见樊云慧:<<英国少数股东权诉讼救济制度>>,中国法制出版社2005年版,第33页.

[26]See note [13],p.189.

[27]See Janet Dine,Company Law ,( 4th edition,Palgrave Publishers Ltd,2001,p.298
[28]例如,美国特拉华州允许在公司章程中约定公司给予股份任何数目的表决权(包括不给表决权,并且还可以将表决权同时赋予债权人,或者只给予债权人而不给予股东,股东的投票权可累积,也可不累积,任由公司选择,等等.See Frank H..Fischel,The Economic Structure ofCorporate Law,Harvard University Press,1991,pp.63-65.

[29]例如,在英国,对于少数股东权的保护,除制定法之外,少数股东在普通法上享有哪些权利,公司中哪些行为构成对少数股东个人权利的侵犯,都是由公司章程来规范的.因而,可以认为,普通法上的少数股东个人诉讼都是围绕着公司章程来进行的.同注[25],第33-34页.

[30]参见[日]大久雄:<<股份公司发展史论>>,胡企林等译,中国人民大学出版社2002年版,第293-354页.

[31]See note [13],p.186.

[32]根据公司所有与公司经营的关系,公司的控制形态概括地分为五类:(1全部控制多数所有权控制(Majority Ownership,(3通过法律手段实施的控制少数所有权控制(Minority Control,(5经营者控制(Management Control.经营者控制,即经营者所拥有的股权微不足道,原本无法控制公司的经营,但因为公司股权极其分散,没有任何人或者任何集团持有足够的股份可以控制公司或者给经营者施加较大的压力,经营者从而获得公司的控制.参见[美]阿道夫.A.伯利、加德纳.C.米恩斯:<<现代公司与私有财产>>,甘华鸣、罗锐韧、蔡如海译,商务印书馆2005年版,第80-100页.

[33]同注[32],第123页.

[34]参见梁上上:<<论股东表决权——以公司控制权争夺为中心展开>>,法律出版社2005年版,第22页.

[35]美国<<示范商事公司法>>第8.03条第1款.

[36]See note [13],pp.253-256.

[37]1984年修正的美国<<示范商事公司法>>第8章中增加了允许任何股东人数为50人或者50人以下的公司在公司章程中选择不设董事会,或者可以限制董事会的权力.

[38]在1600年英国女王颁发给英国东印度公司的特许状中,就记载了公司的组织机构由作为决策机关的所有成员"总会"及作为执行机关的总裁团构成,奠定了英美国家公司法律中公司治理的框架.同注[30],第398页.

[39]蒋大兴:<<公司法的展开与评判---方法、判例、制度>>,法律出版社2001年版,第286页.

[40]见[美] E.博登海默:<<法理学、法律哲学与法律方法>>,邓正来译,中国政法大学出版社1999年版,第241页.

[41]所以,即使在具有较高寻求律师法律服务意识的国家(地区,"对于那些组建较小公司的人经常雇佣一个公司组建代理机构使用'标准格式'的公司章程来组建公司,而不是依靠律师",但他们却没有不安全的顾虑.参见[加拿大]布莱恩.R.柴芬斯:<<公司法:理论、结构和运作>>,林华伟、魏文日译,法律出版社2001年版,第142页.

[42]参见中国证券监督管理委员会颁布的<<上市公司章程指引>>(2006年修订第97条、第98条、第100条、第101条.

[43]例如,英国<<公司法>>第246条规定,任何人只要交付五便士就可查阅保管在伦敦城市路55-71号公司大厦公司注册人员那里的公司组织章程和细则,在每张付费两个半便士后,就能取得经校核无误的复本或其摘录.英国<<公司法>>第24条规定任何股东在交付不超过五便士的费用后就可要求公司给予组织章程和细则的副本一份.参见[英] RG佩林斯、R.杰弗里斯<<英国公司法>>,<<公司法>>翻译小组译,上海翻译出版公司1984年版,第72页.台湾地区"公司法"第101条第2款也规定,公司负责人应将公司章程置备于本公司,否则,各处以1000元以下罚款.参见梁宇贤:<<公司法论>>,三民书局1980年版,第187页.

[44]参见刘志文:<<论公司章程>>,载梁慧星主编:<<民商法论丛>>(第6卷,法律出版社1997年版,第202-203页.

[45]王文宇:<<公司法论>>,中国政法大学出版社2004年版,第80页.

[46]参见注[44],第197页.

[47]德国<<股份法>>规定,公众可以在法院查阅连同申请书一起递交的文件,这其中就包括公司章程,而且公司成立必须进行登记公告,公告的内容与公司章程的内容基本一致.参见毛亚敏:<<公司法比较研究>>,中国法制出版社2001年版,第78页.

[48]See Davis v. Louisville Gas& Electric Co,16 Del.Ch. 157,142 Atlantic 654( 1928
[49]同注[14].

[50]See note[13],p.6,同注[19],第74页.

[51][13],p.391.

[52]参见方流芳:<<乱世出重典---2002年美国公司改革法案述评>>,载<<21世纪经济报道>>,2002年8月19日.

[53]同注[41],第251页.

[54]See note[16],pp.44-53.

[55]当然,还需强调的是,公司章程的润滑剂功能也会受到一定的限制,即股东在公司章程中的自主安排仅针对公司法律中以"在公司章程中可以规定"、"章程中另有规定的除外"等形式表现的任意性规则,对于强制性规则,股东则不能以公司章程自主设计的形式予以规避.这也是保障公司组织有序发展的基本要求.

[56]例如,产生于公司章程特殊安排的"驱鲨剂"条款已经在不少国家(地区呈现出法律化倾向.美国<<示范商事公司法>>第8.06条确认了交错选任董事制度,而英国公司法允许发行用来防御收购行为的无投票权股票,即是"驱鲨剂"条款法律化的表现.参见张舫:<<公司收购法律制度研究>>,法律出版社1998年版,第197页.

[57]例如,反收购措施"毒丸计划"(Poison Pill正是经过1985年美国特拉华州法院的判决才被合法化,并逐步被法律所认可的.

[58]参见徐冬根、陈小欣:<<公司天堂美国特拉华州的魅力所在---特拉华州公司法律制度研究>>,载沈四宝主编:<<国际商法论丛>>(第6卷,法律出版社2004年版,第236-256页,罗培新:<<揭开特拉华州"公司法神话"的面纱——兼及对我国公司立法的启示>>,载<<中外法学>>2004年第1期.

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