董事离职补偿制度的理论反思与规则再造

The Legal Theoretical Analysis and the Construction of the System of Severance Compensation of Directors

《公司法司法解释五》第三条规定了董事职务任期届满前的无因解除与离职补偿规则,设计该制度的目的在于保护中小投资者利益及优化营商环境。研究发现,相关条文的规范教义性质不清,缺乏系统性董事离职补偿的实体和程序规范,制度落地存在困难。在实践中,司法判例和公司章程均存在对制度的异化处理。为应对上述理论和实践困境,董事离职补偿制度的构建应当正本清源,守正出新。在理念上,应当在厘清不同董事与公司法律关系的基础上构建规则,搭建起以无因解任制度为基础的董事离职补偿实体和程序规则,一方面促进公司利益平衡和实现公司治理目标,另一方面也为营商环境法治化提供有力支撑。

Article 3 of the Judicial Interpretation V of the Company Law stipulates the rules for no-cause dismissal and severance compensation before the expiration of the term of office of directors, and the purpose of the system is to protect the interests of small-and medium-sized investors and optimize the business environment. The study found that the normative and doctrinal nature of the relevant provisions was unclear, there was a lack of substantive and procedural norms for directors’ systematic severance compensation, and there were difficulties in the implementation of the system. In practice, there is an alienation of the system in both judicial precedents and the articles of association of the company. In order to cope with the above theoretical and practical dilemmas, the construction of the director’s severance compensation system should be clear from the source and keep the right thing out of the new. Conceptually, rules should be constructed on the basis of clarifying different types of legal relationships about directors and the company, and the entity and procedural rules for the compensation of directors for leaving the company based on the system of dismissal without cause should be established, so as to promote the balance of the company’s interests and achieve corporate governance goals on the one hand, and also provide strong support for the legalization of the business environment on the other hand.