論股東協議制度——以表決權拘束契約與涉及董事權利義務之股東協議為中心

Abstract

表決權拘束契約久為我國學說、實務討論，彰化銀行與台新金案更已纏訟超過16年，隨著臺灣高等法院108年度上更ㄧ字第77號判決以九項審查標準判定系爭表決權拘束契約有效，以及公司法第175-1條之修法允許非公開發行公司得簽訂表決權拘束契約，殘存的問題為公開發行公司於非企業併購時之契約適法性，又於實務運作上，股東間就公司營運事項、權限分配私下約定應屬常見，然我國就其他類型的股東協議討論略顯缺漏，且法院於契約定性似有混淆，錯把股東約定涉及公司董事權限之事項者，亦劃歸為表決權拘束契約，究竟表決權拘束契約與涉及董事權利義務之股東協議之界線如何斷定？兩者有效性之審查標準、涉及之公司治理議題有何不同？即為本文之探討重點。美國法明確區分涉及股東權利之股東協議和涉及董事權利義務之股東協議，前者因股東處分、規劃者乃股東權限，法院高度尊重契約自由，並輔以細膩之審查標準，且不區分公開發行公司和非公開發行公司基本有效，然就後者，因約定內容涉及限制董事秉其獨立、專業判斷做成商業決策之權限，法院原則上認定無效，僅在有全體股東ㄧ致決或公司登記為閉鎖性公司時，並輔以審查（1）是否有ㄧ致決（2）是否侵害第三人的權利（3）是否違反強行規定或公共政策，在通過嚴格之審查後方判定有效，並有須將就股東協議做成書面文件或載明於章程、細則以及註記於股權憑證之嚴格形式要件。本文建議我國法院應明確區分簽訂契約者是以「股東」或「董事」身份簽訂，若以股東身份簽訂涉及股東權利義務事項者，原則上尊重契約自由及股東之財產權，惟若涉及董事權利義務者，似可考慮引進如模範商業公司法第7.32 條之制度，列舉我國常見約定事項如經理人、財務長人選、盈餘分派案等，並在有一致決之前提下例外有效。而就涉及董事間訂立表決權行使協議者，則應有受託義務之審查，更嚴格檢視董事是否以公司利益為最大考量來簽訂契約，而非因己私利被拘束，明確區分各類型契約並輔以寬嚴相異的審查標準，以利在股東契約自由、公司治理彈性與經營與所有分離原則中取得平衡。

The validity of shareholder voting agreements has long been a controversial issue in Taiwan. The Chang Hwa Commercial Bank case has gone through more than 16 years. With Taiwan High Court found the disputed agreements valid with nine criteria and the amendment to Article 175-1 of the Companies Act, which provides shareholders in non-public offering companies to reach a voting agreement, the remaining issue is the legal analysis of the voting agreements entered into by the shareholders in public companies which is not regarding merger and acquisition resolution. In practice, it may be common for shareholders to enter into agreements regarding company operation and authority allocation to adjust corporate structure. However, there are few discussions on other types of shareholder agreements in Taiwan. Moreover, courts of Taiwan seem to mistakenly classify the shareholder control agreements as voting agreements. How to determine the boundary between voting agreements and shareholder control agreements? What are the differences in the criteria for reviewing the effectiveness of the two and the corporate governance issues involved? To answer these questions, the thesis refers to legal development of shareholders' agreements in the United States. In the United States, there is a clear distinction between a shareholder agreement concerning shareholders decision and a shareholder agreement regarding corporate affairs. As for the validity of the former, the court highly respects the freedom of contract since company owners’ have the right to deal with the company and its assets. However, for the latter, since the agreement involves limiting the directors’ authorities to make business decisions based on their independent and professional judgment, the court finds it invalid in principle. Under the condition that the agreement is unanimous or the company is registered as a close corporation, the court may further review (1) Whether there is a unanimous agreement (2) Whether it violates the rights of a third party (3) Whether it violates mandatory rules or public policies, to determine the effectiveness of the agreement. Also, it is necessary to set forth the agreement in the articles of incorporation, bylaws or in a written agreement and be noted conspicuously on the front or back of each certificate for outstanding shares. This thesis argued that the courts of Taiwan should clearly distinguish whether the parties of the agreement is a 'shareholder' or a 'director'. If the agreement is entered into by shareholders concerning shareholder decisions, the freedom of contract and the property rights of the shareholders should be respected. However, if it involves the director decisions, it may be invalid in principle. The thesis suggests to introduce Article 7.32 of the Model Business Company Law, and lists frequently-used terms in Taiwan, such as candidates for manager, chief financial officer, and earnings distribution proposal, etc. Also, the agreements shall be valid only when it is unanimous. As for the director voting agreements, the court shall strictly review whether the directors breach the fiduciary duty while pursuit of self-interest instead of considering the interests of the company. This thesis holds that various types of shareholder agreements should be clearly distinguished and be subjected to different judicial scrutiny, in order to strike a balance between the freedom of contracts, the flexibility of corporate governance, and the principle of separation of management and ownership.