公司转投资从严格限制到合理限制

Corporate Transferring Investment:from Strict Restriction to Logical Restriction

转投资历来是我国公司法学界争议颇多的概念,将转投资定义为公司为获取商业利益或其他权益,依法向其他企业投资从而成为其他企业股东或成员的法律行为可能较为恰当。公司转投资犹如一把双刃剑,作为公司资本运营以及实现利润最大化的基本手段,具有促进规模经营、强化市场竞争力和分散经营风险的功能,但又会产生资本虚增、公司控制权被滥用等潜在危险。通过公司转投资的历史路径考察,结合我国目前的经济、法律环境,转投资行为既不能继续采取严格限制的立法模式,也不宜直接采取不予限制的立法模式,而应采取过渡性的合理限制的立法模式。基于我国的实际情况,构建我国公司转投资合理限制应允许公司章程对公司转投资对象作出例外规定、建立转投资行为披露制度、设立转投资侵权的救济机制、对公司违法转投资的行为应认定为有效。

Corporate transferring investment has been a very controversial concept in the legal community of ＂ Company Law＂ in China. It may be advisable to define corporate transferring investment as an effective investment behavior conducted by one corporation to another in accordance with the law so as to become a shareholder or a member of that company in order to obtain commercial profits and other interests. Corporate transferring investment is like a double-edged sword： as a basic means for capital operation and profit maximization, it has such functions as enlarging the corporation scale, improving the market competitiveness, and dispersing the operational risks; while at the same time it may give rise to some potential risks, such as false increase of capital, abuse of corporate controlling power, etc. By observing the history of the corporate transferring investment, and considering the current legal environment and economic circumstances in China, neither the strictly restricted legislative model nor the non-restricted one is suitable for the practice of transferring investment, instead, a legislative model of transitional and reasonable restriction should be adopted. Practically speaking, the following measures should be taken to impose reasonable restrictions on corporate transferring investment： exceptional rules on the objective of the corporate transferring investment should be allowed to be included in the articles of association; a disclosure system should be established to reveal the transferring investing behavior; a relief mechanism should be set up to deal with infringement on transferring investment; illegal corporate transferring investment should be judged to be effective.