公司章程修改案两种裁判思路评析

Comments on Two Methods of Trial for Cases on Amending Corporate Charter

目前法院处理公司章程修改案中出现两种完全不同的裁判思路:一种是主张尊重修改章程法定程序的效力,仅对程序的结果即股东会决议内容进行合法性审查;另一种则主张直接从程序入手,要求特定事项的章程修改必须经全体股东同意才有效。哪一种主张更合理,存在争议。通过梳理裁判思路背后的学理基础,发觉前一思路自由裁量依据不足,而后一裁判思路直接与公司法上的程序规则相冲突,具有合理性而又不具合法性。因此,需要从立法上根本解决公司章程修改案的司法裁判难题。具体而言,立法可以考虑借鉴西方发达国家超级多数决和类别表决制度来完善现行《公司法》上的多数决规则,从而增强其对中小股东的保护能力。

Two completely different methods are adopted by courts to rule the case on amending corporate charter： one is to respect the procedural effects for amending by undertaking legitimate examination of the procedure＇s results which is the decisions made by shareholders meeting; the other is to directly examine the procedure which requires that amendments for specific matters should be agreed by all shareholders for being effective. Controversies arise on which method is more reasonable？ On review of theoretical basis for both methods, this paper holds that the former one lacks grounds for discretion while the latter one directly conflicts with the procedural rules of the Corporate Act which is reasonable but not legitimate. Therefore, in order to solve this judicial predicament, the legislative method should be adopted by taking reference of the super - majority rules and class vote from Western jurisdictions so as to perfect the majority rules in the Corporate Act and to enhance the capacity to protect minority shareholders.