从契约到组织:债券持有人会议的立法思路

From Contract to Organization:Legislative Thoughts for Bondholders Meeting

当下债券持有人会议的基础是发行人与持有人、持有人相互之间达成的三方契约,但契约逻辑在面对持有人会议之组织性问题时常力有不逮,具体表现为其在解决债券持有人会议的决议效力、瑕疵救济、表意后果等问题上多有不畅,亟待制度回应。就解决路径而言,持有人会议决议的拘束力应由法律明确,避免契约理论下的复杂解读;持有人会议决议瑕疵救济的方式及其程序须经法律细化,摒弃违约的救济模式;持有人会议的议事范围应当法定,并明确此范围下持有人会议决议的优先效力,保障制度的现实意义。本质上看,从契约逻辑到组织逻辑的跨越须有相应的法律规则支撑,债券持有人会议是证成此议题的一个视角,其机理可类推适用于相似的制度当中。

The bondholders meeting is formed by an interwoven tripartite contract,in which all creditors exercise their rights together according to the logic of the agreement.However,due to the weakness of the contract rules in the face of its organizational problems,it has many difficulties in interpreting the validity of the resolution of the bondholders meeting,remedy of defects,and implied consequences,which need to be solved urgently.The specific solutions to the problem are as follows.The binding force of the resolution of the bondholders meeting should be made clear by law to avoid complicated interpretation from the perspective of contract and agreement.The method and procedure of defect relief decided by the bondholders meeting need to be detailed by law,and the default relief mode under the logic of agreement should be abandoned.The scope of the discussion of the bondholders meeting should be legal,and the priority effect of the resolution of the bondholders meeting should be made clear under this scope,so as to protect the practical significance of the bondholders meeting system.In essence,the transition from contract to organization must be supported by the corresponding organizational rules.The bondholders meeting is only one perspective to demonstrate this problem,and its mechanism can be applied to similar mechanisms by analogy.