Study On The Validity Of Shareholders' Agreement

The shareholders' agreement refers to the agreement among shareholders on the distribution and exercise of power within the company,the management of company affairs,the relationship between shareholders and other matters.Although scholars have different definitions of shareholders' agreement,they all agree that the substance of shareholders' agreement is to take the corporate governance as the content,that is,to take the distribution of rights and responsibilities,the management affairs and the relationship of members within the company as the binding object.The particularity of the content of shareholders' agreement is determined by its object governed,that is,what it deals with is not simply the relationship of rights and obligations between shareholders or with a third party,but a complex interest combination relationship involving corporate interests.As the company itself is an independent entity with independent personality and property,its complex hierarchical bureaucratic structure determines that the company cannot be simply understood from the perspective of economics,which regards the company as the nexus of contracts.The company itself is a real organization.In most cases,its interest demands are consistent with its members',but there are also interest deviations.Therefore,the company should be treated as an independent individual that is different from its members.The shareholders' agreement with corporate governance as the object of adjustment therefore has its particularity and lies in the cross field between contract law and company law.Taking this as the starting point,this paper tries to discuss the effectiveness of shareholders' agreement in the cross-field of contract law and company law.The first chapter discusses the relationship between shareholder agreement and corporate governance,and makes it clear that the object of this paper is the agreement among shareholders with corporate governance as the content.Other non-corporate governance contracts may be concluded by shareholders,but they are not the object of this paper.From the perspective of the world,although it is difficult to realize "the ultimate of company law",it is undeniable that corporate governance tends to converge in the world.Therefore,the existing foreign practical experience and judicial views have certain reference value for China.In addition,this part analyzes the types of companies and ownership structure in China,and holds that theshareholders' agreement is fully applicable in the practice of corporate governance in China,so it is necessary to regulate it.However,as far as our legislation is concerned,the importance of shareholders' agreement in practice has not been consider yet.It's worth researching how we should regulate shareholders' agreement.Chapter two discusses the contractual nature of shareholder agreement itself.Whether in countries of common law system where the practice is more abundant or in countries of continental law system where the start is later,the nature of shareholder agreement is considered as contract.Different from the articles of association as an autonomous document,shareholder agreement is more free in terms of type,content and form.On this premise,China's judicial practice only evaluates the effectiveness of shareholders' agreement from the perspective of contract and tries to maintain its effectiveness.However,from the perspective of existing legal precedents,there are still some limitations to judge the effectiveness of shareholder agreements solely from the perspective of contracts,among which the most obvious one is the neglect of the interests of the company itself.The neglect of the independent personality and interest appeal of the company makes the interests of the company subordinate to the interests of shareholders.As a consequence,the judgment of judicial review on the effectiveness of the shareholder agreement is often superficial rather than deep.Chapter three analyzes the characteristics of shareholder agreement from the perspective of company law in response to the disadvantages of reviewing shareholder agreement from the perspective of contract only.This part mainly analyzes the organizational characteristics of company law and the characteristics of shareholders' agreement different from general contracts under the framework of organizational law,so it needs special treatment.For a long time,the corporate contract theorists have believed that the nature of a company is a nexus of contracts,and the company law should also be an extension of the contract law.This part refutes this view that a company should be an independent entity with a procedural and organizational nature.Under this premise,the shareholders' agreement and the general contract also have the difference,mainly manifests in the restraint object expansion,the organization contract externality and the shareholder benefit interweave aspect.The variation of the nature of the shareholders' agreement contract determines that its focus is not on the realization of the parties' inner thoughts and the balance of the parties' bargain power,but more on the impact on the interests of thecompany,the interests of the third party and even the social public interests,as well as the stability of the company's internal organization.Chapter four is the cause of invalidation of shareholders' agreement.Since the shareholder agreement has its own characteristics of organizational law,the regulation of its effectiveness can not only be viewed from the perspective of contract law.As an independent branch of law,company law is not simply an extension of contract rules,but an independent measure of interests and value judgment.Therefore,when evaluating the effectiveness of shareholder agreement,judicial practice should not only follow the existing contract law rules,but also respect the essence and spirit of company law.This part mainly refers to the US law about the effectiveness of the shareholders' agreement precedents,and combines it with the judicial practice and theory in China,holding that in addition to the contract law rules and related rules in general provisions of civil code,other elements as the types and phases of the company,the types of agreement,whether it's against the interests of a third person or the articles of association should be taken into consideration.The conclusion part is a summary of the full text,and once again emphasizes the importance of shareholders' agreement in China's corporate governance practice and the necessity of regulation.However,a one-way regulation of contract law is not enough to highlight the particularity of shareholders' agreement.However,what plays a more important guiding role in the process is the philosophy and spirit of company law behind it.