公司自治与司法干预的平衡艺术:《公司法解释四》的创新、缺憾与再解释

The Art of Balance between Corporate Autonomy and Judicial Regulation: Innovations,Loopholes and Reinterpretation of Company Law Judicial Interpretation No.4

《公司法解释四》基于中小股东友好型的司法理念,提高了公司法的可诉性、可裁性与可执行性。公司自治失灵,司法权不能失灵。法官既要精准把握司法解释背后的核心价值观,也要认真甄别公司自治与司法干预的边界。公司决议效力瑕疵案件的裁判要遵循程序严谨、内容合法的公司民主决策理念。股东知情权案件的裁判要遵循强化信息披露、遏制滥权的公司透明治理理念。股东分红权案件的裁判要遵循自治为主、强制为辅的股东价值投资理念。股东优先购买权案件的裁判要遵循内外有别、动静结合的股权诚信转让理念。股东代表诉讼案件的裁判要遵循严控程序、拓宽外延的股东积极治理理念。

Based on the minority shareholder-friendly judicial philosophy,Company Law Judicial Interpretation No. 4 has made it easier both for the parties to litigate and for the courts to hear and to enforce the court rulings on corporate law disputes. In case of the failure of corporate autonomy,the judicial power shall not fail to step in. Judges should precisely understand the core values behind the Judicial interpretation, and carefully delineate the boundaries between corporate autonomy and judicial regulation. In hearing the case of defective corporate resolutions,the philosophy of transparent corporate decision-making shall be followed in terms of procedural justice and substantial legality. In hearing the case of shareholder's right to information,the philosophy of transparent corporate governance shall be followed in terms of holistic disclosure and prevention of abusive inspections of books and records. In hearing the case of shareholder's right to dividend, the philosophy of shareholder value investment shall be followed in terms of corporate voluntary declaration of dividend and mandatory declaration of dividend in exceptional cases of fraud on minority shareholders. In hearing the case of shareholder's preemptive right to purchase the shares from other fellow shareholders,the philosophy of honest share transfer shall be followed in terms of differentiation between internal and external relationships,between shareholder's ownership and transactional security. In hearing shareholder derivative suits,the philosophy of shareholder activism in corporate governance shall be followed in terms of rigorous procedure and broad application.