股东协议与公司章程“任意性条款”的关系初探

On the Relationship between the Agreement of Shareholders and the Optional Clauses in the Articles of Corporation

股东除了可以在公司章程中安排他们的权利义务之外,还可以采用另外一种方式,即股东协议的方式。股东协议如涉及公司章程的"绝对必要记载事项"和"相对必要记载事项",应当根据相关情况,对协议内容做出具体解释。对于其他事项,股东协议可以在法律允许的范围内做出约定。原则上,股东协议不能成为公司股东会和董事会决议效力审查的依据。但在例外情况下,股东协议也可以作为公司股东会和董事会决议效力审查的依据。只有将关于公司组织的事项作为"任意性条款"纳入公司章程,成为公司章程的一部分,才能完全确保这些事项在公司存续期间一直对新股东和其他第三人发生效力。公司章程需要办理工商备案,从而对外公开,但在大多数情况下,股东协议不需要对外公开。总之,虽然公司章程的"任意性条款"和股东协议都可以涉及公司组织的某些内容,但是,二者的性质不同,在实务中的法律效果也不同。股东应当根据法律规定和实务需要,适当做出选择。

In addition to the prescriptions in the articles of corporation,shareholders can also arrange their rights and obligations in another way,that is,in the agreement of shareholders. When the agreement of shareholders covers ＂ absolutely required clauses＂ or ＂ optional but formal clauses＂,the contents of the agreement shall be explained in the light of the relevant circumstances. In other cases,the agreement of shareholders may be concluded within the limits permitted by law. Generally speaking,the shareholders＇ agreement cannot be treated as the basis for the review of the effectiveness of the shareholders＇ meeting and the board of directors. But in exceptional circumstances,the shareholders＇ agreement can also be used as a basis for the review of the effectiveness of the shareholders＇ meeting and the board of directors. Only by incorporating the matter as an ＂ optional clause＂ into the articles of corporation of the company and becoming part of the articles of corporation of the company can it ensure that these matters have been effective for new shareholders and other third parties during the company＇s existence.The articles of corporation need to be filed to the bureau of industrial and commercial,which is open to the public,but in most cases,the shareholders＇ agreement does not need to be opened to the public. In short,although both the ＂ articles of corporation＂ and the shareholders＇ agreement of the company may cover certain elements of the organization,the legal nature of the two is different. Shareholders should make appropriate choices in accordance with legal and practical needs.