破产重整程序中的股东权益调整规则——基于中小股东权益保护的视角

Regulation of shareholders′rights and interests in bankruptcy reorganization procedure——Base on the perspective of protecting the rights and interests of minority shareholders

股东权益存在是探讨股东权益调整规则的先决条件。股东权益区分调整具有法理学和法经济学上的正当性。在破产重整程序中调整股东权益时,需要基于股东的过错程度作出相应处理:控制权人对债务人经营困境有着更多的作用力,应将其权益大部分调减,当其存在抽逃出资、虚假出资、滥用法人独立地位等违反公司法规定的情形时,应直接将其权益调零;中小股东与债权人同属于以获取资本收益为目的的投资者,难以对公司的经营管理产生实际影响,应少调减甚至不调减。

The existence of shareholders′rights and interests is the prerequisite to explore the adjustment regulation of shareholders′rights and interests.The adjustment of shareholders′rights and interests is justified in jurisprudence and law economics.In adjusting the shareholder′s rights and interests in the bankruptcy reorganization procedure,we need to make corresponding treatment based on the degree of fault of the shareholders.As the controller has more influence on the debtor′s operational dilemma,it is reasonable to reduce most of his rights and interests.In the case of the withdrawal of capital contribution,fraudulent investment,the abuse of the independent status of legal person and other behaviors that violate company law,the controller′s rights and interests could be entirely removed.The minority shareholders and the creditors alike are investors who aim to obtain capital gains.It is less possibly for them to exert practical influence on the operation and management of the company.Therefore,the rights and interests of minority shareholders should be reduced less or even kept unchanged.