组织规则的本质与界限以成员合同与商事组织的关系为重点
许德风组织规则的本质与界限以成员合同与商事组织的关系为重点
Nature and Limit of Organizational Rule
期刊名称：《法学研究》
期刊年份：
作者：许德风
单位：北京大学法学院
中文关键词：合伙合同;股东协议;公司章程;股权转让;派生诉讼;股东资格
英文关键词：organizational rule;member contract;bylaw;share transfer;derivative suit
中文摘要：
在商事组织中，成员合同与组织规则不应截然区分。成员协议，尤其是全体成员一致达成的协议，可视为对章程的补充与修改，或是成员就有关事项作出的特别决议，其组织规则的效力应予承认。组织规则的本质在于为主体资格的确认提供制度框架，为组织的决策与管理提供协商机制，为组织财产的独立进而为与组织相关的第三人提供保障。组织规则的界限源于组织人格的拟制性与组织内部决策与管理机制的不完全性，后者是成员合同应予尊重、派生诉讼应予允许的深层依据。
英文摘要：
Business associations operate through organizational rules in the process of internal decision-making and external obligation-performing or liability-undertaking. This paper concentrates on the functions and limits of organizational rules, especially their relationship with the contracts among members of the association or between the members and the association. The nature of organizational rules lies in the functions of business associations. Firstly, with the help of organizational rules, business association acquires its personality. Organizational rules guarantee the association's independence by protecting it from the intervention of its members. If the members do not perform their obligations such as capital contribution, the association can sue for their performance. Meanwhile, since the members and the association are both independent persons, the association has no right to impose limitations on the transfer of shares between members or to an outside acquirer either. Secondly, organizational rules can also be viewed as the rules for collective decision-making. They set out a framework for further negotiation among the members and are more efficient compared to the “case for case” decision-making. Thirdly, organizational rules serve the function of maintaining the independent property right of the association. Business association law in this context is a branch of property law. This also explains why the organizational rules apply once the business association enters into transactions with third parties and why the organizational rules, instead of contracts among members, should apply when the creditors' rights are at stake.
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