关于我国公司法修订草案的意见和建议述评

A Review on Opinions and Suggestions on the Revised Draft of Corporation Law

相对于我国现行公司法,修订草案在公司资本制度、公司法人治理结构、一人有限责任公司和上市公司独立董事以及股东直接诉讼和代表诉讼等方面均有较大变革,体现了我国现行公司法修改的基本方向,但是草案仍然存在一些值得商榷的问题。公司立法首先涉及到政府管制与公司自治之间的博弈,在现代法治社会,政府对公司的“管制”应该逐渐过渡到“法治”;公司立法涉及到公司内部股东、董事、高级管理人员和职工之间的博弈,应赋予各方相互制衡而又尽量避免产生冲突的权力;公司内部法治化是公司立法的取向。

Compared with the current corporation law, the revised draft has made considerable progress, such as corporate capital system, corporate governance, one man＇s company of limited liability and the independent director of listed company and shareholder＇s direct action and representative action. The revised draft also reflects the basic direction of the amendment of current corporation law. However, some problems with the draft still need to be discussed. The corporation legislation first of all involves the interaction between government control and corporation＇s self-governance, and in modern society which is governed by law, the ＂control＂ of government on corporation shall be transferred to ＂government by law＂ step by step; since the corporation legislation also involves the interaction among the shareholders, directors, high-level managers and common staff inside corporation, the legislation should entrust the power that may not only balance all the parties, but avoid conflicts as much as possible; law governance inside the corporation is the direction of corporation legislation.