四、组织规则的本质与界限 - 吉林大学理论法学研究中心.doc

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(( 内容提要 商事组织法中的强制性与推定性规范、组织章程共同构建了商事组织的决策、行为与责任规则。通常的见解认为，在处理涉及组织关系的事项时，组织规则应优先于组织成员之间、成员与公司之间的合同约定。文章回应了该项认识，从多个角度讨论了成员合同对组织关系可能发生的影响，并从组织法的本质与界限角度，设计了处理组织关系与合同关系的制度规则，论证了相关的理论支撑。 Abstract Business associations operate through organizational rules in the process of internal decision making and external obligation performing or liability undertaking. This article offers an insight into the essential functions and boundaries of organizational rules, especially their relationship to the contracts between members themselves or between the members and the organization. It argues that the influential conception in Chinese law that the board and the shareholder meeting of a close corporation are separate independent bodies apart from the shareholders is misleading in several aspects: directors are normally shareholder, business decision are frequently made by the shareholders through informal meeting. Organizational rules in business association have three main functions. First, it separates the personality of the entity from the members of the entity’s, and thus grantee the independence of the organization from the intervention of the members of the entity. Once the entity are incorporated or in other way organized, it then turns to be independent from the members and if the members do not perform their obligations such as the obligation to bring in capital, the organization can sue its member for the performance. Of course, since the members and the organization are both independent persons, the organization has no right to impose limitation on the share transfer between the members or from one member to an outside acquirer. Second, organizational rules can also be viewed as the rules for collective decision making. They set out the framework for the further negotiating between the members and are efficient in compare with the case for case decision making. Third, organizational rules serve the function to maintain the property independ