自由与限制——一人公司为股东担保的法律规制

Freedom and Limitations——Legal Regulations on One-man Company as Shareholder Warrantor

我国现行《公司法》对公司为股东提供担保做出了限制性允许的规定,同时第一次承认了一人公司的合法性。但是对于一人公司能否为股东提供担保问题则语焉不详。一人公司为股东担保涉及到公司股东与债权人两极利益平衡问题。完善一人公司为股东担保制度,应主要从债权人参与、担保登记、担保数额限制、担保对象限制等方面着手。另外,还要有一人公司信息披露制度、财务会计制度等相关制度的配合,在当前立法规范缺失的情况下,可以通过在具体案件处理中总结司法经验,出台司法解释,最终以立法形式对该问题做出尽可能完善的规定,以确保公司法的实践品性得到彰显。

The currently effective Company Law in China has approved, though partially restrictive, companies to provide guar- antee for shareholders; meanwhile, the legitimacy of one-man company has been acknowledged for the first time in the legal sense. However, it＇s just vaguely mentioned whether one-man company could provide guarantee for shareholders. This issue involves interest balance between the shareholders and creditors of the company. The reform of the guarantee system in one- man company as shareholder warrantor shall be launched from the aspects of creditors~ participation, warranty registration, re- striction in warranty quota and targets. In addition, the information disclosure system, financial, accounting and other relevant systems of one-man company shall be used jointly in settling such disputes. In view of the current absence of corresponding rules and regulations, the legislators are advised to summarize experiences from the specific cases and their settlement outcomes, release corresponding judicial explanations, and at length, stipulating such issues legally in a highly detailed manner, thus ensuring the practicality of Company Law.