公司权力的归属

The Vesting of Corporate Powers

从我国公司法文本看,公司股东会与董事会各有自己的专属权力,采取的是职权法定主义,并不是通说所主张的股东会中心主义。职权法定主义造成司法实践的诸多难题。要解决这些难题,需要回归到问题的原点——公司权力的归属。鉴于公司治理规制的复杂性,应采取"常态+"的坐标理论进行立法。公司权力归属于董事会是公司治理的常态,是公司法的心脏条款,应该围绕董事的职权、义务、责任、免责与商事判断规则等展开详细立法。以此作为定位的中心,利用例外的立法技术来规范公司股东会的职权。公司权力归属于股东会的极端情形是废除董事会,只设股东会。董事会权力是由一系列性质各异的权力组成的权力群,可以向下转授经理人来行使公司的经营管理权力,但是董事会依然对其行使指导与监督的权力。我国公司法的经理制度与现实社会存在严重的脱节,应该重构经理人制度。

From the text of China’s Corporate Law, the shareholders’ meeting and the board of directors of a company own exclusive powers separately, which is a statutory power model, rather than the shareholder centrality in the view of mainstream scholars. The statutory power model is problematic in judicial practice. To solve these problems, it is necessary to return to the origin of the problem: the vesting of corporate power. Given the complexity of corporate governance rules, legislation should be based on the coordinate theory of "regularity+". Placing the corporate power in the hands of board of directors is a typical model of corporate governance and lies at the heart of corporate law. Detailed rules should be built around the power, duties, responsibilities, exculpations and business judgment rules of directors. Besides the typical model, some exceptions shall be set to vest some kinds of power in shareholders’ meeting. The extreme case is the abolition of the board of directors and the retaining of the shareholders’ meeting. The power of the board of directors are a nexus of power which are different in nature. Some kinds of power of the board can be delegated to the officers to exercise the management of the corporation, but the power of direction and supervision shall be in the hands of the board. There is a serious disconnect between the officers’ provisions of our current corporate law and the practice. Therefore, it is necessary to remake the rules of corporate officers.