结社自由与公司的设立

Freedom of Association and Establishment of Companies

公司设立行为属经济性结社行为,其边界应当在结社自由的框架下进行审视。作为一项经济自由权利,公司投资者的结社自由在结社主体、目的和类型等方面均有别于政治性结社自由。就结社目的而言,虽然现实中投资者未必都是或者总是追求利润最大化,但营利性目标仍是公司法理论和制度应予坚持的立场。另外,和平结社是自由结社的政治前提,公司法应当以促进公司内外部关系的和平以及矫正公司内外部关系的不和平状态为己任,这一任务对于公司法来说意义重大,堪称公司制度的政治基础。

The act of company establishment belongs to the behavior of association formation of economic nature; its boundaries should be examined in the franework of freedom of association. As a fight of economic freedom, the freedom of association of the company investors is different from the freedom of association of political nature in such aspects as the association subject, the purpose, and the type, etc.. As for the purpose of association formation, the goal of profitability should be still insisted on in both the theories of corporate law and the system, although in reality the investors are not necessarily or always seeking to maximize their profits. In addition, the peaceful formation of associations is the political prerequisite for freedom of association. The company law should shoulder the task as its own responsibility to promote the harmonious relationships inside and outside of the companies and rectify the disharmonious state of internal and external corporate relationships. This task is of great significance for corporate law; it can be regarded as the political foundation of company system.