有限责任原则的契约性功能研究

On Contractual Function of the Limited Liabilities Principle

有限责任利弊皆存,由契约功能而附带的公平与效率价值虽不能被忽视,但风险外部性为其不可消失的"衍生品",契约视角下的揭穿公司面纱规则从不同视角解读了有限责任的优劣。监督成本、破产成本以及债权融资的激励效应为债权人面对风险外部性的三个成本要素,揭穿公司面纱规则在降低风险外部性成本的过程中承受了过重的历史责任,债权人利益在公司有限责任原则所导致的风险外部性面前受到损害,寻求利益博弈中价值衡平的揭穿公司面纱规则亟需相关配套机制的完善与规制。

There exist both advantages and disadvantages in the limited liabilities. Although the value of fairness and efficiency attached can not be neglected, risk externalities are never disappearing derivation from contracts. From the perspective of contracts, the rule of piercing the corporate veil explores the merits and drawbacks of limited liability. The supervisory cost, bankruptcy cost and the effect of debt financing are three cost factors of the risk externalities creditors are faced with. The rule of piercing the corporate veil bears too heavy historical responsibility in the process of reducing risk externalities cost. Creditors are harmed by the risk externalities brought about by the limited liabilities of company, and seek to improve related mechanism of the rule of piercing the corporate veil in the interest game.