表決權拘束契約與累積投票制

Voting Agreement and Cumulative Voting

臺灣最高法院向來認為表決權拘束契約係屬無效，其主要論據則是此一契約的運作有背於公司法中所規定之強制性累積投票制的立法目的。相較之下，雖然絕大多數學者支持表決權拘束契約應屬有效，但為數不少的學者似亦支持現行法下累積投票制的規定。本文認為造成此一現象的原因是變更章程的多數決與契約修改的一致決之間的差異。本文主張：若能將少數股東的保護納入考量，任意性的累積投票制應能獲得廣泛支持。唯有如此，表決權拘束契約的有效性方能為司法實務所衷心認同。

In Taiwan, it has long been held by the Supreme Court that the shareholders’ voting agreement is invalid. The Supreme Court believes the operation of shareholders’ voting agreement would have jeopardized the purpose of the mandatory cumulative voting regime, which was put into Taiwan’s Company Law in 1966. While almost all Taiwan’s academics, to the author’s knowledge, criticize the Supreme Court’s stance on this voting agreement issue, many of them seem to favor the current cumulative voting rule. This paper argues that this inconsistency stems from the difference between the majority rule in corporate charter amendment and the consensus rule in contract modification. As long as the protection for minority shareholders can be taken into account, a default rule of cumulative voting will gain strong support from academics and practitioners. Only under such circumstances can the validity of shareholders’ voting agreement be well-received by the judges as well as scholars.