论除名制度与失权制度的功能互补

    On the Functional Complementarity between the System of Shareholders Disqualification and the System of Loss of Shareholder Rights

    • 摘要: 中国立法实践对瑕疵出资股东的强制退出机制进行了有益尝试,分别确立股东除名制度与股东失权制度。除名与失权的制度关系是学界与实务界关注的焦点。若失权制度可以吸收除名制度,或者失权制度已经达到除名制度应有的规范目的与功能,除名制度实无存在之必要。从公司内部利益制衡来看,瑕疵出资股东的失权惩戒机制已经相当完备,可实现除名制度无法有效达成的内部制衡效果;从公司外部利益制衡来看,失权制度未充分考虑失权决议可能对外部债权人带来的利益致损问题。相较而言,除名制度已涉及债权人保护机制,这又形成其对失权制度的功能补充。除名制度与失权制度在制度功能上有一定的耦合,但除名制度仍有其制度价值;二者并非替代关系,而是互补关系,除名制度应当予以保留。从制度效果来看,除名制度与失权制度的衔接与联动,可以减少或避免出现制度漏洞或矛盾,从而确保强制股东退出机制的整体完善。

       

      Abstract: China’s legislative practice has made beneficial attempts to establish the forced withdrawal mechanism for shareholders who made defective capital contributions, establishing both the shareholder expulsion system and the shareholder rights forfeiture system. Currently, the relationship between the two systems is a focus of attention in both academic and practical circles. If one believes that the shareholder rights forfeiture system can absorb the shareholder expulsion system, or that the former has already achieved the normative purposes and institutional functions that the latter should have, then the shareholder expulsion system is unnecessary. From the perspective of internal interest balance within the company, the forfeiture of rights as a disciplinary mechanism for shareholders with defective capital contributions is already quite complete and can achieve internal checks and balances that the expulsion system cannot effectively accomplish. However, from the perspective of external interest balance for the company, the shareholder rights forfeiture system has not fully considered the potential damage to the interests of external creditors caused by resolutions on forfeiture of rights. In contrast, the shareholder expulsion system has already involved creditor protection mechanisms, which form a functional complement to the shareholder rights forfeiture system. Therefore, although the two systems have certain functional overlaps, the shareholder expulsion system still has its institutional value; they are not a substitutive relationship but a complementary one, and the shareholder expulsion system should be retained. From the perspective of institutional effectiveness, the connection and interaction between the two systems can reduce or avoid institutional loopholes or inconsistencies, thereby ensuring the overall improvement of the mechanism for forcing shareholders to exit.

       

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