The Distinction Of Shareholders' Agreements And Shareholder Meeting Resolution In Corporate Governance

Shareholder agreement and shareholder meeting resolution are two major means in corporate governance.There is no legislation on the shareholder agreement system in China,and the shareholder agreement and the resolution of shareholders' meeting may overlap in function,so there is confusion in practice.This paper analyzes the comparative method and the hermeneutic method.To distinguish between the agreement of shareholders and the resolution of shareholders' meeting in our country and to solve the problems caused by the differentiation,the countermeasures are put forward.The first part summarizes the shareholder agreement system and the shareholders' meeting resolution system respectively.First of all,the shareholders' agreement and the resolution of shareholders' meeting are introduced.After that,the author makes a comparative analysis of the differences between the agreement of shareholders and the resolution of shareholders' meeting from the aspects of the nature,the subject of the constitution,the expression of will,the effect of action and the application of law.According to the comparison,the distinction of the two is significant in both theory and practice.The second part expounds the legislation of shareholder agreement system and shareholder meeting resolution system in the United Kingdom,the United States and Germany.The shareholder agreement system was born in the United States and is closely associated with closed companies.The provisions of the shareholder agreement system in American statute law are also more comprehensive.The British company law indirectly stipulated the shareholders' agreement and created the shareholders' meeting written resolution system.As a civil law country,Germany stipulates the shareholder voting agreement system of limited companies.The above three countries have introduced the shareholder agreement system into the company law and made provisions on the subject and content of the application.It has pointed out the direction for our country to define the boundary between the agreement of shareholders and the resolution of shareholders' meeting,to resolve the conflict of effectiveness and to perfect the legislation.The third part expounds the legislative status of shareholder agreement and shareholder meeting resolution in corporate governance and the problems caused by the distinction between them.The company law of China does not clearly stipulate the shareholderagreement system.It regards the shareholder agreement as a contract and is subject to the adjustment of the contract law.This leads to the unclear distinction between the concept of shareholder agreement and the resolution of shareholders' meeting in practice,and when the content of the two conflicts,the issue of applying the decision to cancel the resolution of contract law on the basis of the shareholder agreement arises.This kind of civil judicial thinking lacks commercial thinking and is not conducive to safeguarding shareholders' rights and interests.The fourth part is based on the third part of the existing problems,according to foreign legislative experience put forward targeted countermeasures.The purpose of the company law is to safeguard the interests of shareholders.The company contract theory provides the legitimacy for the shareholder agreement to enter corporate governance.Make clear the distinguishing standard between the agreement of shareholders and the resolution of shareholders' meeting,and clarify the conceptual boundary between the two;When there is a conflict between the contents of the shareholders' agreement and the resolutions of the shareholders' meeting,the two levels of effectiveness should be standardized.On the other hand,considering the characteristics of the company's organizational law,the shareholder agreement involving the company's autonomy cannot violate the provisions of the resolution of the shareholders' meeting.