类别股与中国公司法的演进

Classified Shares and the Evolution of Chinese Corporate Law

融资市场的发达是公司制度变迁的内在动力,这是公司法演进的规律之一。类别股具有债权与股权双重属性,其实质是股份的经济利益与投票权分离。类别股的创设不仅为公司融资创造了巨大空间,而且会深刻影响我国公司制度的整体演进,更可促进商事组织法层面的制度创新与完善。类别股从根本上打破了经济利益与投票权等比例的公司结构与激励基础,赋予了股东平等原则新内涵。作为商业组织法核心的信义义务将进一步向多层次演化,强制性规范与公司章程自治功能之间的互动将在类别股私人创设的过程中得到更大发挥。必须贯彻法定原则,以构筑多群体利益平衡的类别股制度。

A fully developed financing market is the internal driver of corporate system changes,which is one of the laws that motivate the evolution of corporate law.Since a classified share possesses the dual nature of a creditor's right and a shareholder's right,it is in essence the separation of the economic interests of shares from their voting rights.The creation of classified shares has not only created huge space for corporate financing,but will have a profound impact on the overall development of Chinese corporate system.It will also promote the system innovation and perfection of business organization law.Classified shares have fundamentally broken the corporate structure and motivation basis characterized by proportional economic benefits and voting rights,and have ascribed new meaning to the equality principle of shareholders. The fiduciary duties,as the core of business organization law,will tend further toward multi-level development,and the interactions between mandatory regulations and the self-governing functions of corporate articles will play agreater role in the private creation of classified shares.China should implement the principle of legality to construct a classified share system based on a balance of interests among different groups.