Study On The Validity Judgment Of Shareholder Agreement Of Limited Liability Company

As a kind of autonomy mechanism different from the articles of association and the resolution of the board of shareholders,the shareholder agreement has been widely applied in the practice of Chinese companies due to its unique flexibility and relativity nature.Although the company law of China does not explicitly recognize the shareholder agreement in the aspect of substantive law,the shareholder agreement has actually become the realization mechanism of corporate autonomy.Regretfully,while there is a lot of "protocol alternative governance" in corporate practice,there are no rules related to the effectiveness of shareholder agreements.Although in essence,shareholders agreement belongs to the category of contract,but as shareholders agreement usually involves organizational rules such as voting rules of company law,management,personnel selection,profit distribution,the shareholders agreement always has the dual attributes of contract and organization.This means that the effectiveness of the shareholder agreement must be recognized in double perspective of contract law and corporation law.At present,there are some problems in the practice of confirming the validity of shareholder agreement in China,such as the prominent perspective of contract law recognization and the lack of perspective of company law recognization.In form,the recognization of corporate legal relations from the perspective of contract law inevitably leads to the over-expansion of corporate autonomous space due to the freedom of contract.In essence,the lack of the perspective of company law recognization leads to the disregard of corporate personality and corporate interests,the confusion of corporate personality and shareholder personality,corporate interests and shareholder interests,and the denial of the legal significance of the existence of the company.However,although it is necessary to emphasize the importance of company law perspective in the effectiveness recognization of the shareholder agreement,considering the practice of our country company as well as the evolution direction of company law,the recognization of the effectiveness of the shareholder agreement should not excessively emphasize the compulsory company organization rules and the distinction of company personality and shareholder'spersonality,and the interests of the company and the interests of the shareholders.In terms of China's company practice context,the lack of company personality concept and autonomous method,the failure of the classification of regulation mode and the highly centralized equity distribution determine that in Chinese limited liability companies,the shareholders' direct participation in corporate governance is not only the requirements of corporate governance practice,but also the present situation of the company practice.This means that to emphasize the distinction of company personality and shareholder's personality,interests of the company and the interests of the shareholders is not practical.From the perspective of extraterritorial effectiveness recognization process and legislative status quo,Anglo-American legal system countries and regions would always start from the need of corporate governance,and affirm the shareholders' right to make arrangements different from the rules of company law for closed corporate affairs through agreement.This pragmatic approach to validity determination in response to practical demands also promotes the evolution of positive law.At present,corporate laws in countries such as the United States and the United Kingdom have affirmed the effectiveness of shareholders' agreement in corporate governance.However,this does not mean that any form of shareholders' agreement is valid.There is a clear difference in the courts' attitudes towards the validity of different contents and different forms of shareholders' agreement.This requires us to construct the idea of effectiveness recognization on a basis of typification analysis.The effectiveness recognization of shareholder agreement needs to be carried out from multiple dimensions.First of all,there exists a general path to determine the effectiveness of the shareholder agreement,which is determined by the double facets of transaction law and organizational function involved in the shareholder agreement.Firstly,as a kind of contract,the shareholder agreement should be recognized from the perspective of contract validity.Secondly,as a kind of self-governance rules similar to the company's articles of association,the conflicts between these two rules would inevitably occur in practice,especially when the shareholder agreements are related to a third party.Third,just as the legal behavior cannot violate the public order and good custom,the shareholder agreement cannot violate the public policy of the company law.Even if it is valid from the perspective of contract law,the shareholder agreement which violates the basic value orientation of the company law should be considered as invalid.Secondly,the effectiveness of the shareholder agreement should be determined based on its form and content.In terms of the form of the shareholder agreement,whether the shareholder agreement is signed by all shareholders and the type of company have an important influence on the effectiveness of the shareholder agreement.In principle,only the shareholder agreement signed by all shareholders shall have the same effect as the articles of association,and only such agreement shall constitute an alternative to the organizational rules of the company law.The shareholders' agreement signed by partial shareholders is not binding on the company,but only binds the contracting shareholders.In terms of the content of the shareholders' agreement,according to whether the shareholders agreement directly involves the organizational rules in the company law,the shareholders' agreement can be divided into shareholder agreement involving management rights and shareholder agreement involving property rights.Since the former involves the organizational rules in the company law and its content is always related to the shareholders' right of joint profit,if this kind of shareholders agreement is to be effective,it often needs to be signed by all shareholders.As for the confirmation of the effectiveness of the rules revised or substituted organizational rules of the company law in the shareholder agreement,it is necessary to judge its effectiveness from the aspects of China's corporate governance practices and the nature of the company law.Whether it is reasonable depends on whether the value judgment conforms to the general consensus of the current theory and practice.For the latter,such shareholders' agreement usually takes the shareholders' right of self-benefit as the content,hardly involves the organizational rules in the company law.Therefore,the effectiveness recognization of such shareholders' agreement is naturally carried out from the perspective of contract law,and in principle,the effectiveness of such agreement should be confirmed.At present,the recognization mechanism of Chinese courts also shown the defect of relying too much on contract law while ignoring the perspective of company law.This is due to the objective condition of lacking relevant standards in Chinese company law and the concept of company personality independence in the long business practice.But considering the current situation of company practices in China and the company autonomy remains to be further expanded in reality,the trend of recognizing the effectiveness of shareholder agreements from the perspective of contract law reflects the subconscious of developing the company's autonomy.Although such thought reflects the judges consensus to promote the evolution of company law.However,it should be noted that in practice,such thoughts also reveals the defects of ignoring corporate personality and interests.For this reason,this paper emphasizes that China should establish a effectiveness recognization thought in line with China's national conditions from the perspective of typification analysis based on the references of extraterritorial legislation.