股东除名规则的反思与重构

Reflection and Reconstruction of the Expulsion of Shareholder Rules

作为一种解决有限责任公司所面临的人合性危机的制度设计,股东除名规则的产生既有因应公司法实践需要的社会基础,也有来自有限责任公司的团体性、人合性及其自治性的制度支撑。我国现行《公司法》没有确立股东除名规则,但最高人民法院发布的司法解释则有所规定。不过,该司法解释所规定的股东除名规则存在除名事由单一、除名程序规则过于原则等问题,导致该规则发布伊始就落后于公司法实践需要并难以操作。为使该司法解释所确立的股东除名规则得以发挥其固有功能,需要从除名事由的确定和除名程序的设计两方面对其进行重构。

As a kind of system designed to resolve the crisis of Limited Liability Company, the generation of shareholders expulsion rules has two causes. One is its social basis which is in response to the practice of Company Law; the other is the institutional support which comes from group, people combination and autono- my of Limited Liability Company. China＇s current Company Law has not established the rule of expulsion of shareholders, but the judicial interpretation issued by the Supreme People＇s court is specified. There are two problems in the judicial interpretation on the expulsion of shareholders rules. One is that the removal subject is single, the other is that the procedural rules are too principle which leads to the rules have been lagged be- hind the practical needs and difficult to operate from the beginning of the rule released. To make the rules to play its proper function, we need to reconstruct the rules from such two aspects as the determination of removal subject and the design of expulsion procedures.