德国资合公司执行机关代理权之边界分析

Research on the Unlimited Representation of the Executive Organ of Capital Company in German

公司执行机关无限代理权作为一项原则,在德国及欧盟公司法理论体系中堪称为支柱性法则。而究其确切边界却一贯是不成文的,且唯经由代理权滥用规制等学说方得以体现,譬如公司与“亲近人群”的及康采恩性质的关联交易等。本文尝试将这一边界置于资合公司范畴内作更详尽论述,以查验其与欧盟法相关指令是否一致;同时,将引入英国法相关内容作比较性阐述,并结合中国公司法实况作一评点。

The principle of unlimited right of representation on company organ is absolutely a basic doctrine inside the theory of both german and European company law. After all its exact boundary is always unwritten and could only be empressed through the theory of anti-abuse of the power of representation, for example, by the deal between company and those nearstanding people, and affiliate transation inside of konzern etc. This essay would try to give a more direct and detailed proof about that. By the way the identity of the boardary with the directions of European U-nion would also be checked. Finally, the author would like to evaluate the consequential legal fact and practice of Chinese company law.