控制股东适用公司归入权的证成路向

Exploring the Way Forward for the Application of the Disgorgement by Controlling Shareholders

当今公司法的国际竞争已回归治理竞争与制度竞争。控制股东作为公司运行中的关键角色,其权利的规范行使历来受到重视。尽管滥用控制权侵害公司利益的情况时有发生,但仅有的损害赔偿请求权却难以独当解决利益冲突的重任。《公司法》第148条第2款的归入权制度能及时有效地弥补公司受损利益,适用主体却局限于董事和高管,堵塞了向控制股东行使的可能路径。通过考察规制股东滥权的方式及背后意蕴,将归入权推演至控制股东并不存在实质阻碍,反而能够发掘出二者的连接点。应借助《公司法》的修改,围绕归入权从具体制度与整体体系重塑规范表达方案,在利益平衡中找准本国发展之面向,作出理性而前瞻的回应。

International competition in corporate law today has returned to governance competition and institutional competition.As a key player in the operation of the company,controlling shareholders has traditionally received attention for the regulated exercise of their rights.Although abuses of control against the interests of the company have occurred from time to time,the right to claim damages alone is not sufficient to resolve conflicts of interest.Article 148(2)of the Company Law,which provides for the disgorgement,is a timely and effective remedy for the company’s interests,but its application is limited to directors and officers,blocking the possibility of exercising it against controlling shareholders.By examining the ways in which abuses by shareholders are regulated and the implications behind them,there is no substantial impediment to extrapolating the disgorgement to controlling shareholders,but rather a connection point between the two can be identified.With the amendment of the company law,we can reshape the expression of the disgorgement in terms of the specific system and the overall system,and find a rational and forward-looking response to the balance of interests in the development of the country.