民法典时代公司法定代表人受托责任建构

Construction of Legal Representative’s Fiduciary Duties of Chinese Corporation in Civil-Code Era

我国《民法典》基于法定代表人对公司之“概括代表”和“同一人格”的定位,在责任承担上采取了由公司对外清偿后,再对内进行事后追偿的双重机制。但由于公司法定代表人利益与公司利益兼具同质性和异质性,导致“同一人格”的认定缺乏法理和事实基础,因此这一双重责任追究机制的合理性值得商榷和反思。从控制公司代理成本和平衡公司利益冲突的角度考量,可以在公司制度设计中树立法定代表人与公司人格区分的理念,通过引入信托责任制度及对公司法定代表人受托责任约束机制的建构,合理分配公司与法定代表人间的责任承担。在《公司法》的修改时,应将更多的信托理念融入对法定代表人行为的规制,并通过完善忠实义务、注意义务的行为标准和判断标准的方式予以实现。

According to Chinese Civil-Code, responsibility assumption in the context of corporation is rooted in the conception of the legal representative being the general or statutory representativeof the legal person and, based on the pre-assumption that the legal representative and the corporationassume the identical legal personality, according to which the corporation shall be held responsible forthe out-siders and be endowed with the right of ex-post remedy against the wrong-doing legal representative. The conception of identical personality and therefore the mechanism of responsibility assumption are however, doctrinally and empirically questionable owing to dual nature of homogeneityand heterogeneity with respect to the interests of the corporation and legal representative. For the purpose of mitigating the conflicts between agency costs and protecting corporate’s interests, it’s desirable, in the course of modifing corporate law, to introduce into corporate regime, the concept of differentiating personalities of legal representative and that of corporate itself. and to design legal representative’s fiduciary duties by way of trust-law’ s responsibility regime, so as to allocate responsibilitiesbetween corporation and legal representative reasonably. In the course of modifying Corporation Law,it’s desirable to transplant even more trust-law’s conceptions into corporation law for the goal of regulating behaviors of legal representatives, perfecting behavior standards and judging criteria in relation tothe duties of loyalty and care.