论出资义务加速到期的商业逻辑——股东/董事作为履行者与监督者责任之差异

The Business Logic of the Acceleration of Investment Obligation ——The Difference Between the Obligations of a Shareholder/Director as a Performer and Supervisor

否定未届期股东加速出资责任之主要理由在于股东所享有的“期限利益”,但期限利益只是一种“商业约定”,并不具有不可更改的“刚性”。当商业环境发生变化,公司财务、资金需求调整,就可能存在修改股东约定,要求股东加速履行出资义务之可能。董事作为代表公司进行日常经营决策及执行股东会决议之机构,能较早感受到公司财务状况及资金需求的变化,董事对股东未届期出资之催缴义务,乃其信义义务之当然内容,董事是否催促股东加速其出资,本身也是商业判断的过程,在公司出现财务及资金困难时,怠于履行催缴义务之董事,构成信义义务之违反,因此,应对相关主体承担赔偿责任。但董事此种催缴责任实质为监督责任。中国现行立法尤其是私法规则,不太区分监督者责任与法定义务履行者责任之差异,应当采纳“区分主义”的思维,适当限制监督者的责任。尤其是,应区分董事身份之差异性——根据其作为股东董事、执行董事、影子董事、名义董事等不同身份,采取差别责任之方式,解决董事对股东未届期出资之催缴责任。总之,法律判断不能仅仅建立在法律推理的基础之上,还要建立在商业逻辑或曰商业判断的基础之上。股东出资期限是一种可以调整的商业判断,董事是进行该商业判断的主体之一,因此,要承担相应的判断失误或者不积极履职的责任。这是我们今天在商事立法和裁判过程中最为缺失的一面。

The main reason to deny the accelerated investment obligation of an undue shareholder is the “term interests” enjoyed by the shareholder, which is whereas a commercial commitment without any unalterable rigidness, and the requirements are available of revising the shareholder’s agreement and asking the shareholder to accelerate the investment obligation, when corporate finance and fund demands are in adjustment to respond to the changes of the business environment. Director, as an agency of the corporate to make daily-management decisions and to carry out resolutions of board of shareholders, is capable of feeling the changes early of the corporate financial situations and fund demands, and the calls obligation of the shareholder’s undue investment of director is the content of the faith obligation.Whether director should urge shareholders to accelerate their investment is per se a course of business judgment, while director’s failure to carry out the calls obligation in the corporate financial difficulties constitutes the breach of the faith obligation, therefore, director should take the responsibility of compensation to the stakeholders. However,the calls obligation of director is in essence the supervisory obligation. While the current legislations in China, especially the rules of private law do not differentiate the supervisory obligation and performance obligation of legal duty, it is necessary to take the thoughts of “distinctionism” to limit the liability of supervisor. Particularly, identities of director should be differentiated, to resolve the problem of director’s calls obligation of shareholder’s undue investment, by the way of different obligations in accordance of shareholder director, executive director, shadow director, dummy director and so on. In conclusion, a business judgment is not only made upon the basic of legal reasoning, but also upon the basic of business logic. The period investment of shareholder is an adjustable business judgment, and director is one of the principals of making business judgment, as a consequence, it is duty for director to be liable of making poor judgment or negative performance, which we need most today in the course of commercial legislation and adjudication.