Unlike the establishment of a limited liability company, entering into an initiator agreement is not a mandatory legal procedure for establishing a limited liability company. However, in reality, many initiator shareholders still enter into an agreement with the same nature at the beginning of the establishment process, which is also known as a cooperative operation agreement or a joint investment agreement. Unlike the articles of association aimed at regulating the behavior of the established company and its members, the initiator agreement focuses on clarifying and regulating the rights and obligations of the initiator during the company establishment stage. Therefore, it is generally believed that after the establishment of a company, the initiator agreement no longer has binding force on the members of the company, and its corresponding functions immediately give way to the company's articles of association. Of course, there are also views that the initiator agreement will not become invalid after the establishment of the company, and it is two legal documents that are effective in parallel with the company's articles of association. When there is a conflict between the initiator agreement and the company's articles of association, the essence should be seen through the phenomenon, and the principle of relying on the initiator agreement should be inclined to protect the interests of the company founder and maintain the founder's entrepreneurial intention. But it can be confirmed that the initiator agreement is mainly a binding agreement between the initiators, which is effective for the initiators; After the establishment of the company, newly added shareholders through capital increase and other means are only bound by the company's articles of association.

So, when the initiator agreement (internal agreement of the company) is inconsistent with the company's articles of association (company registration), how should shareholder rights be recognized? The judicial determination of shareholder rights can occur in both internal and external relationships of the company. On this issue, the current basic consensus in company law theory and judicial organs is that when a company handles internal affairs, it is based on the register of shareholders; The handling of external relations of the company shall be based on the registration of the company registration authority as the standard for identifying equity. But when the company does not keep a register of shareholders, and there is an internal agreement between shareholders that is similar to the initiator agreement, and the record of each shareholder's special equity in the agreement is inconsistent with the record of the company's articles of association filed by the company registration authority, how can the equity of both shareholders be confirmed? We believe that in cases of handling internal relationships of limited liability companies, when the initiator agreement is inconsistent with the company's articles of association, the confirmation of equity should be based on the company's articles of association in principle, but there are some special situations that need to be paid attention to in practice.

1. The company registration is entrusted to an intermediary agency, and the articles of association are not signed by the shareholders themselves. This situation is more common in smaller companies invested by natural persons. These small companies are often registered in economic development zones and private economic cities, and are entrusted by specialized enterprise registration agencies to handle registration, providing one-stop services such as capital advance, capital verification, industrial and commercial registration, and tax registration. The articles of association, which are one of the necessary documents for company registration, are generally signed by the personnel of the agency, but the important and special matters of the articles of association are formulated according to the will of the direct entrusting party among the shareholders. In practice, for the purpose of attracting investment in private economic cities, and for the purpose of earning agency fees, agency agencies have not strictly checked the documents that should be signed by natural person shareholders themselves, and have not strictly reviewed the authorization of the principal, resulting in disputes between shareholders regarding the consequences of company registration.

2. The initiator agreement is signed by each shareholder in person and truly reflects the true intentions of each shareholder. The prerequisite for confirming equity based on the initiator agreement is that the company's articles of association are not signed by the shareholders themselves. In addition, it is necessary to verify some or all of the following facts in order to mutually confirm the agreement with the initiator: ① the proof of payment of capital contribution, such as the capital contribution certificate, payment certificate, etc., reflects the investment shares of each shareholder; ② The exercise of shareholder voting rights reflects the equity shares represented by each shareholder; ③ The distribution of shareholder earnings reflects the actual share of equity held by each shareholder. But the initiator agreement also has a certain binding force on shareholders. If the rights and obligations of shareholders are stipulated in the agreement, and the subsequent articles of association do not conflict with the agreement or do not change the agreement, the agreement cannot be used against the company but can be used against shareholders. If a shareholder does not act in accordance with the agreement, it constitutes a breach of contract against other shareholders and they must bear the responsibility for breach of contract, which is reflected in court cases.

3. Shareholders have the right to change the previously established articles of association by unanimously signing documents later. According to Article 37 of the Company Law, the shareholders' meeting exercises the power to amend the company's articles of association; Matters unanimously agreed upon by shareholders in writing may also be decided without a shareholders' meeting, and all shareholders shall sign and seal the decision document. According to this regulation, even if the records on equity shares in the company's articles of association are binding on all shareholders, all shareholders can determine the equity shares again through a unanimous decision (such as signing a confirmation letter, signing an agreement, etc.) afterwards. Therefore, the unanimous decision of all shareholders formed after the company's articles of association, regardless of its qualitative content, whether it is the internal division of shareholding ratio or the change of equity shares, does not affect its constraints on the internal equity relationship of the company. Especially regarding the consistency agreement regarding the change of subscription ratio and dividend distribution ratio for capital increase, it must be a consistent agreement among shareholders, rather than written in the articles of association. Special provisions regarding the disposal of voting rights and equity transfer shall be included in the articles of association or amendments to the articles of association. Even if the shareholders unanimously agree but are not included in the articles of association, they cannot confront a third party. If there is a unanimous agreement among shareholders and the dividend ratio is disposed of, the transfer of equity will have two consequences for the new shareholders, one of which is.

In the above situations, when there is a conflict between the initiator agreement and the company's articles of association, the confirmation of shareholder rights should be based on the initiator agreement, as the initiator agreement best reflects the original intention of the company's initiator. In reality, there are often situations where the content of the initiator agreement is inconsistent with the company's articles of association. These situations may occur due to non-standard operations, or due to the avoidance of legal prohibitions and restrictions, in order to facilitate the smooth passage of industrial and commercial registration and conceal the true situation, such as proxy investment. Especially when there is a difference between the new shareholder and the original shareholder, the essence of the phenomenon should be examined to protect the fundamental interests of the original shareholder, that is, the initiator. Guoling Law Firm will fully leverage its professional advantages to effectively help enterprises prevent relevant legal risks; We will also provide more forms and diverse legal service projects for enterprises based on industry development and actual conditions, guiding scientific decision-making and standardizing development.