类型化股东协议与股东会决议关系之辩

Debate on the Relationship between Typed Shareholders’ Agreements and Shareholders’ Resolutions

摘要: 实践中，有不少中小公司采用股东协议方式进行公司治理，这也引发了诸多股东协议代替股东会决议的纠纷。股东会决议原则上应当以法律和公司章程为决议依据。股东协议性质如何，救济途径如何，不能一言以蔽之，应当以签订股东和协议内容为核心标准进行类型化分析。仅有全体股东签订的以公益(公司股东会职权行使)为内容的特殊股东协议才能够替代股东会决议或者成为股东会决议依据。普通股东协议也只能通过仲裁或者诉讼寻求救济。股东会是公司“公器”绝对不能成为个别股东私人契约的“私人法庭”和“私人执行局”。股东协议治理在保护小股东利益等方面具有治理优势，应当与股东会决议协同以扬长避短，共同实现良好的公司治理。

Abstract: In practice, many small and medium-sized companies adopt shareholder agreements for corporate governance, which has also led to many disputes over shareholders’ agreements replacing share-holders’ meeting resolutions. In principle, the resolution of the shareholders’ meeting shall be based on the law and the articles of association. The nature of the shareholders’ agreement and the remedy channels cannot be described in a word, and a typological analysis should be carried out based on the signing of shareholders and the content of the agreement. Only a special shareholders’ agreement signed by all shareholders with the content of public welfare (exercise of the functions and powers of the company's shareholders’ meeting) can replace the resolution of the shareholders’ meeting or become the basis for the resolution of the shareholders’ meeting. Ordinary shareholders’ agreements can only seek relief through arbitration or litigation. The shareholders’ meeting is the “public instrument” of the company, and must not become a “private court” and “private executive board” for the private contract of individual shareholders. The governance of shareholders’ agreements has governance advantages in protecting the interests of minority shareholders, and should be coordinated with the resolutions of the shareholders’ meeting to maximize strengths and avoid weaknesses, and jointly achieve good corporate governance.