Study On The Legal Effect Of Company Promoter Agreement

The promoteragreement is an agreement reached by the promoters at the establishment stage of the company,which is used to regulate the rights and obligations of the promoters,playing an important role in the establishment and the normal operation of the company in future.There are only a few provisions involving the promoter agreement in the Company Law of the People's Republic of China,and there are no clear provisions on the promoteragreement in relevant laws and regulations.The judicial practice field and the theoretical circle usually have different understanding of the nature,content,effectiveness of the promoter agreement.Different understandings of the nature of the promoter agreement may lead to different causes of action in similar cases.Different understandings of the established requirement of the promoteragreement may lead to different judgments about the nature and effectiveness of the same agreement.Different understanding of the period and scope of validity may lead to different probative force of litigation on the promoter agreement.As the "predecessor" of the company's articles of association,the similarity and difference in the content of promoteragreement and the company's articles of association cause constant disputes among the promoters and between the promoters and the company.As a logical starting point for the analysis of other related issues of the promoters,the nature of promoteragreement has "duality",namely,same nature and group nature.The identification of the causes,content,efficacy of promoter agreement should be combined with the duality in the promoteragreement nature,and judged according to the specific reality,by distinguishing between different periods and objects.This paper consists of the following four parts except for introduction and conclusion:The first part mainly discusses the basic concept and nature of the promoter.Through reviewing the theories about the identification of promoters in China and abroad,combined with practice,we should be clear about how to identify the promoter in judicial practice in China.At the same time,analysis of the nature of the promoter agreement should be made,to clarify the civil partnership and the group nature of commercial affairs in the promoter agreement,so as to lay the theoretical foundation for solving the problems in the cases of promoter agreement.The second partthrough induction and arrangement of the cases on the establishment of the company on China Judgments Online from 2011 to 2016,it is found that there is increasingly fierce disputes in China about promoteragreement disputes,and these disputes are relatively concentrated.The third part is based on the collection and collation of the case,it discusses the problems existed in the legal effect identification of promoteragreement further.Through the analysis of specific cases,it is found that there are mainly following problems in the judicial practice of the promoter agreement:the identification of the cause of action is different,the criteria for the establishment of key cases is relatively single,the period and the scope of validity are different,assessment of whether litigation about changing,canceling or removing the promoteragreement varies,different judgments on the efficacy of promoteragreement and the company's articles of association where conflicts occur.The fourth part reponds to the five aspects of the promoter agreement mentioned in the third part.In practice,the action causes and the validation criteria of the promoter agreement should be combined with the contractual nature of the civil affairs and group nature of commercial affairs in the promoteragreement for identification.At the same time,it should be clear that the promoter agreement is still valid after the establishment of the company,binding on the company to a certain extent.Where conflicts with the company's articles of association occur,it should differentiate the object to make judgment.Through analysis of the problems above,this paper expects to propose some suggestions on the perfection of the promoter agreement system.