债权人介入公司治理的合理性分析——以债权人与公司的关系为基点

Involvement of Creditors in Corporate Governance

同股东相比,债权人虽与公司保持着密切的联系,也是公司资产的供给者,却承担了不相称的经营风险,并随时为股东的机会主义行为买单。以公司法规范为标准,对公司享有的债权,其实现的保障手段可分为公司法外、公司法内、公司治理内三个层次。合同、担保等公司法外方式,未能突破外部性瓶颈,保护效果有限;公司法内提供了法人格否认等具体制度,但大都是在权力配置外给予保护,存在着被动性和对债务公司的依赖性。这些对公司债权传统的保护方式都不能解决公司资产非正常减少危害债权的问题。

According to the Company Law, the means of protection for the credit enjoyed upon the company can be divided into three levels： means outside the company Law, means within the Company Law and means of corporate governance. Contracts, guarantees and other means outside the company law, fail to break through the bottleneck externality and the protective effect is limited. The company law provides concrete means such as piercing the corporation veil, which are mainly protections outside the distribution of power and dependent and passive to the debtor corporate. Neither can solve the problem of credit endangered by non-normal decrease of company＇s assets. Meanwhile, the creditors, maintaining close ties with the company and being suppliers for the assets of the company, have to bear the disproportionate management risk and pay bills for the shareholders for their opportunistic behaviors. Effective means of creditor protection must be sought within the framework of corporate governance and creditors should retain and maintain their voice in the disposition of the company＇s assets. It is further confirmed by the status of creditor protection and practice of China.