論閉鎖性公司股東書面協議之設計與應用

Abstract

在台灣整體企業家數中，中小企業占企業家數百分之九十八以上，究其企業性質通常具有人合性、股份轉讓的受限性與所有權與經營權合一之特性，亦即大致為閉性股份有限公司而非公開發行公司，¬惟台灣公司法法規設計卻以公開發行股份有限公司為重點規範，因此，於企業經營之實務運作上即面臨諸多窒礙難行之處， 然而，在我國現行法制下，若要調整有限公司與股份有限公司架構，並新設立閉鎖性股份有限公司類型與專章，其法律程序甚為繁雜，且成本甚高，故為符合實際需求，應允許有意願且有能力之中小企業規劃設計「股東書面協議」，以滿足個別股東或企業之營運需求，保有公司營運之彈性與靈活，以面對全球化之挑戰與競爭。 股東書面協議之概念，在現在公司之實務運作上有其多樣性與重要性，本文首先揭示公開性與閉鎖性公司之不同與法理規範，再藉由經濟分析的觀點，說明股東書面協議應如何規劃，方符合閉鎖性公司之特性與需求，以為企業實際運作下之營運風險管理。又股東書面協議制度係源於美國，是本文係參酌美國法規範與實務判決，介紹美國股東書面協議之重要內容，其內容之設計，因股東投資目的之不同，協議條款可為不同的約定，最後，再論以我國目前現行法規範與法院實務對於股東書面協議之規定，探討目前對股東協議之法規範，是否適用於我國以中小企業為主體之環境，企圖藉由股東書面協議內容之全面介紹，以為我國未來全面引進書面協議時，企業界之實際運用。

According to statistics, small and medium business accounts for over 98% of corporations registered in Taiwan. Most of them are closely held corporations instead of public ones. In addition to the characteristic of shares transfer restriction, closely held corporations have a small number of shareholders and are usually managed by the same group of people who bear the ownership risk in the corporation. However, current Taiwan Company Act was legislated on the basis of large and public corporations and does not meets the needs of closely held companies, which gives rise to difficulties in implementation and business operation. Nevertheless, it is complicated and costly to adjust current Taiwan legal system that consists of Unlimited Company, Limited Company, Unlimited Company with Limited Liability Shareholders and Company Limited by Shares or to have chapters and articles legislated specifically for closely held corporations. With cost and feasibility concerned, “shareholders agreement” plays a critical role for closely held corporation to satisfy its individual demands when facing severe challenges and competition in globalization under rigid legal regulations. The concept of “shareholders agreements” has its diversities and significance in practical operation. The thesis begins with introductions of distinctions between closely held corporations and public ones. With its distinctiveness, the thesis subsequently clarifies, from the viewpoint of economic analysis, how to design shareholders agreements to achieve the objects of investment and manage the accompanying risks under closely held corporations. As shareholders agreements have its origin from United States, the thesis also reveals the legal system and courts judgments concerning shareholders agreement in United States. Additionally, the thesis discloses several substantial articles frequently manipulated in shareholders agreement. At length, the thesis reviews the articles of current Taiwan Company Act and the viewpoints of courts judgment on shareholders agreement to see if the existing statutory norms are consistent with the demands of small and medium businesses in Taiwan, which are closely held corporations as indicated above. In conclusion, with the comprehensive presentation of shareholders agreements, the thesis is accomplished with the anticipation to satisfy the practical application of closely held companies when the system of shareholder agreements is officially introduced to Taiwan in the future.