公司市场退出法律制度的嬗变逻辑与进化路径

Transmutation Logic and Evolution Pathway of the Systemon the Exit of Company from Market

我国《公司法》尚未认可公司市场退出的多项改革,滞后于实践的发展,对瑕疵经营公司缺乏包容度,仅设置了局限于法庭外退出机制的单一性规定,需要进行体系性再造。公司市场退出的丰富实践与我国《公司法》的有限规定形成对比,强化公司市场退出立法,整合与更新既有法律制度安排,能够维系债权人利益的整体保护水平。重申公司市场退出法律制度的私法底色,明确公司登记是对商事主体资格确认的本意,是公司市场退出法律制度改革的关键。登记机关应尊重清算时公司剩余财产分配的自治权,由“前端严审”转向“后端惩治”,以信用机制约束滞留市场的公司,发挥商事资质确认的功能。我国《公司法》应当成为法庭外与法庭内公司市场退出法律制度的“母法”。简易注销制度应扩大调整对象,强制退出制度不应成为依职权注销制度,可在适用前提、期间和结果方面完善休眠制度。

Multiple reform measures on the exit of company from market have not recognized by the Company Law,which lags behind the development of practice,lacks tolerance towards a company with defective operation and limits the market exit to a single rule on the exit mechanism outside the court,thus systematic reconstruction is needed.The rich practice of exit of companies from market and the limited provision of Company Law form a comparison.Strengthening the legislation on the exit of company from market,integrating and renewing arrangements in the present system are sufficient to maintain the overall level of protecting creditor's interests.The reiteration of the nature of system on the exit of company from market as an issue of private law and the clarification of the original meaning of the doctrine of business subjects confirmed in company registration are key to the reform of the system on the exit of company from market.Acknowledging the verification is the nature of the registration is the key to the reform of corporation market withdrawal system.The registration authority should respect the autonomy of the company in the distribution of residual property during liquidation,lay emphasis on the ex post punishment instead of ex ante scrutiny,restraint companies lingering in the market through a credit mechanism,give paly to its function of confirming commercial qualification.The Company Law should become the fundamental law on the system of the exit of company from market outside and within the court.The objects governed by the summary deregistration system should be expanded and compulsory exit system should become the system on deregistration decision made according to power.Dormancy system can be perfected in aspects of application condition,duration,and legal consequence.