股東協議的組織法效力邊界研究

Boundary of Shareholders Agreements' Effectiveness in Organizational Law

封閉公司的股東通常通過股東協議參與公司治理，即以私人契約補充甚至替代決議這一正式治理機制，由此關涉組織法與契約法之關係，核心議題即股東協議替代正式治理機制的邊界何在。股東協議的雙重屬性決定其受行為法、組織法的共同規制，且重心在後者，於此背景下考查其效力、治理效應及邊界，需關注其與強制性規範的效力位序，更要處理好其與章程、股東會決議等其他股東自治方式的融合與衝突，以實現契約自由與社會公正的平衡。全體股東協議，基於合同相對性原理，原則上僅約束股東群體，如涉足公司治理的其他場域，則需跳出相對性桎梏作必要的效力延伸；部分股東協議，應恪守合同相對性，視其是否違反強制性規定以判定其效力或可履行性。基於以上認識，可望構建公司法上的股東協議的生效要件、效力範圍、與章程及決議衝突的處理等系統規則，發揮協議、決議及章程等多種治理機制的協同效應，構建最佳的公司治理體系。

In closely-held companies, shareholders usually participate in corporate governance through shareholders agreements, which act as private contracts that supplement or even replace formal governance mechanisms. This raises issues related to the relationship between organizational law and contract law, with the core issue being the boundaries within which shareholder agreements can replace formal governance mechanisms. The dual nature of the shareholders' agreement determine that it is subject to both behavioural law and organisational law, with a focus on the latter. From the perspective of the organizational law, the theory of corporate contract and corporate autonomy provide the foundation for the organisational law effect of shareholders agreements. To examine the organisational effect of the shareholders agreement in this context, it is necessary to pay attention to whether it exceeds the boundary of mandatory norms of the company law in terms of entity, and on how they integrate and potentially conflict with other forms of shareholder autonomy such as the articles of association and shareholders meeting resolutions in terms of procedural dimension, so as to achieve a balance between contractual freedom and social justice. Regarding the coordination of the effectiveness of the shareholders agreement with the shareholders meeting resolution and the articles of association is concerned, it is necessary to categorize the discussion based on the scope of the representations. Some shareholders agreement shall abide by the relativity of contract and shall not have the effect of organisational law, and whether or not it has the effect of contract law or performability depends on whether or not it violates the mandatory provisions of the company law. If a shareholders agreement conflicts with the shareholders meeting resolution and the articles of association, the shareholders agreement cannot represent the overall meaning of the shareholders due to the lack of procedural company safeguards, and therefore its effect is inferior. Based on the principle of contractual relativity, a shareholders agreement among all shareholders in principle only binds the group of shareholders, but in closely-held companies, the consensual mechanism in the all-shareholders agreement can compensate for the procedural deficiencies and effectively serve as a substantial equivalent to a shareholder meeting resolution. In such cases, if the all-shareholders agreement meets the requirement of publicity, it can be binding on non-signatory parties. In the event of a conflict between an all-shareholders agreement and a shareholders meeting resolution or articles of association, the later expression of the company's intent should prevail. This means that even a shareholder meeting resolution or an amendment to the articles of association passed by a majority of the shareholders meeting at a later date can subvert the agreement of all shareholders at an earlier date. The mechanism of the system is that, at the level of company law, the value of efficiency and security embodied in majority decisions should be respected; while in the contract law level, the shareholders agreement is still binding between the parties, so parties should still bear the responsibility of breach of contract to the relative. Based on the above understanding, it is expected to construct systematic rules on the effective elements, scope of effect, and handling of conflicts with the articles of association and resolutions of the shareholders agreement under the company law, so as to leverage the synergistic effect of the various governance mechanisms such as the agreement, resolution and articles of association, and to creat an optimal corporate governance system.