公司代表人制度“法定性”的弱化——法律与社会良性互动视角的分析

The Weakening of the Statutory Feature of Corporate Representative——From the Perspective of Positive Interaction between Law and Society

对法定代表人法定性的起源、生成与演变作了一个鸟瞰式的回顾,揭示了该制度法定性不断弱化的发展趋势。运用弗里德曼法律变化四分类学说来分析,法定代表人制度是法律与社会良性互动的结果,其法定性弱化的动因既不能简单地归结为法律内因变化,也不能完全由社会外因所引致。为继续完善该制度,法律应回归代表人机制的本源,确保法律与社会的良性互动,尊重商业惯例的内在品性并且遵循该品性来修正法定代表人制度。

A comprehensive review on the statutory feature of corporate representatives from its origin, for- mation and development helps reveal its increasingly weakening trend. Based on the theory on change of law in four categories proposed by Milton Friedman, the corporate representative system is an accomplishment of posi- tive interaction between law and society. The weakening of its statutory feature is neither completely driven by internal change of law, nor utterly by external factors. For the purpose of perfecting the system, the law should focus on the representative system itself to ensure the positive interaction between law and society and revise the corporate legal representative system by respecting and conforming to the nature of commercial practice.