Study On The Effectiveness Of Shareholders’ Agreement After The Establishmenet Of Company

The article is composed of an introduction,a main body and a conclusion,and the main body is divided into three parts,the general contents of which is as follows:The first part aims to clarify the concept and legal attributes of shareholders’ agreement,and to lay the foundation for the following discussion on the differences of effect between shareholders’ agreement,shareholders’ resolution and articles of association.This article argues that the concept of shareholders’ agreement needs to be defined from two perspectives: its connotation and its extension.As far as the connotation of shareholders’ agreement is concerned,there are two types of shareholders’ agreement in a broad sense and a narrow sense.And the latter on is more worthy of studying.And the “Narrow Shareholders’ Agreement” is supposed to be reached by the shareholders of the limited liability company,the subject of which is limited to the shareholders of the company(including the promoters and other groups that will become shareholders in the future).Besides,the form of agreement is in writing,and the content of the agreement is mainly designed for the specific shareholders,containing the rights and obligations of the specific shareholders,the exercise of the company’s internal power,and the daily business operations of the company.According to this definition,the characterization of the shareholders’ agreement can be further clarified from the nature of the conclusion of the shareholders’ act to form such agreement.The author believes that although there are two different modes of entering into shareholders’ agreements,fundamentally the nature of these acts is contractual.And in terms of the extension of shareholders’ agreements,we need to discuss the connection and difference between shareholders’ agreements and promoters’ agreements,shareholders’ resolution and articles of association respectively.After finishing the definition of the concept of shareholders’ agreement,it is still necessary to clarify the legal attributes of shareholders’ agreement.From the academic theory and judicial practice in China and abroad,the shareholders’ agreement has both “Attribute of Contractual Law” and “Attribute of Group Law”.Among them,the “Attribute of Contractual Law” is basic element to shareholders’ agreement,while the “Attribute of Group Law” is the special attribute of shareholders’ agreement.Such dual attributes make it inappropriate to determine the effectiveness of the shareholders’ agreement solely from the perspective of contract law due to the “Attribute of Group Law” on corporate autonomy contained in its contents.When determining the effectiveness of the shareholders’ agreement,it must be consciously started from the contract legal attribute,and the contract legal attribute and the organization legal attribute shall be separated.The second part discusses the conflict between the validity of the shareholders’ agreement and the shareholders’ resolution.In China’s judicial practice,cases that may reflect such conflict mainly include three types: “The difference between the court’s explicit affirmation and the nature of the documents”,“Conflict between the shareholders’ agreement unanimously adopted by all the shareholders and the shareholders’ resolution” and “Conflict between the shareholders’ agreement concluded by some shareholders and the shareholders’ resolution”.In addition,“The shareholders’ agreement unanimously adopted by all the shareholders conflicts with the shareholders’ resolution” includes another four types: “The shareholders’ agreement shall be at least as valid as the shareholders’ resolution”,“The shareholders’ agreement shall generally be superior to the shareholders’ resolution”,“The shareholders’ agreement shall not contradict the shareholders’ agreement”,and “The shareholders’ agreement may be superior to the shareholders’ resolution due to special agreements of the shareholders”.Based on the foregoing cases,the author believes that,with respect to the shareholders’ agreement jointly signed by all shareholders,when there is conflict between such shareholders’ agreement and the shareholders’ resolution jointly adopted by all participating shareholders,consideration shall be given to such two circumstances as whether the participating shareholders are all the shareholders of the Company.Where the participating shareholders are all the shareholders of the Company,consideration shall also be given to whether the conflict between the provisions of such two documents falls within the scope of Article 37 of the Company Law;however,with respect to a shareholders’ agreement signed by some shareholders,its validity shall not be superior to a shareholders’ resolution adopted by a shareholders’ meeting,under no circumstance.The third part discusses the conflict of effectiveness between the shareholders’ agreement and the articles of association.In the judicial practice in China,the types of cases that can reflect such conflict include four types:(1)“The shareholders’ agreement is a supplement to or has the same effect as the articles of association”,(2)“The shareholders’ agreement is concluded before the articles of association”,(3)“The shareholders’ agreement is concluded after the articles of association”,and(4)“The shareholders’ agreement at the group level is superior to the articles of association of any company within the group”.Beijing No.1 Intermediate People’s Court and the Intermediate People’s Court of Yulin City,Guangxi Zhuang Autonomous Region took totally contrary attitudes with respect to “The shareholders’ agreement is a supplement to or has the same effect as the articles of association”;for the type “The shareholders’ agreement is concluded before the articles of association”,most courts held in their judgment that the effectiveness of the articles of association shall prevail while a few courts held that the effectiveness of the shareholders’ agreement shall prevail;for the type “The shareholders’ agreement is concluded after the articles of association”,most courts held in their judgment that the effectiveness of the shareholders’ agreement shall prevail while a few courts still insisted that the articles of association shall prevail.In the opinion of this article,based on the foregoing cases,the approach to solve the conflict of effectiveness between the shareholders’ agreement and the articles of association shall also take into consideration the current situation of “Agreement in lieu of governance”,and the foregoing contents shall be combined and considered separately from the internal and external effectiveness of the shareholders’ agreement and the articles of association.As far as the conflict of identification of the internal effectiveness of the articles of association is concerned,there exist theory of “Invalidity of Agreement”,“Validity of Distinction” and “Eclectic Theory”.Among them,the “Eclectic Theory” has more referential value than other theories.On that basis,this article discusses the effectiveness of the shareholders’ agreement to the shareholders as well as to the board of directors and other senior officers of the company.