公司法到破产法:重整程序下的股东权利行使

From Corporate Law to Bankruptcy Law:Shareholder Rights in the Reorganization Procedure

在重整程序的公司治理与权利配置中需正视股东的主体地位与正当权利。重整程序适用条件与重整公司的估值困难决定了重整程序中公司的剩余索取权人不确定,在未证明公司“事实破产”前,公司法设定的股东共益权应当继续行使,但股东不得“明显滥用”权利恶意阻碍重整程序进程,损害债权人等利益相关者的合法利益;而破产法设定的股东重整程序参与权利应实质性加强,以实现重整程序内股东与债权人在剩余索取权人未定下的利益平衡。

In the reorganization procedure,shareholders’principal status and legitimate rights should be properly acknowledged and addressed in the corporate governance.The applicable conditions of reorganization and the difficulty in the valuation of company under reorganization determine that the residual claimants of the company are uncertain.Therefore,before proving that the company has actually“Insolvent”,the co-benefit rights stipulated by the Company Law shall continue to be exercised by shareholders.It should be noted,however,that no shareholders shall impede the reorganization process,or injure the interests of any creditor or stakeholder of the company by abusing their rights on purpose.In order to achieve the balance of interests between shareholders and creditors under the undetermined subject of residual claims,shareholders’right to participate in the reorganization proceedings stipulated in the Bankruptcy Law should also be substantially strengthened,so as to balance the interests between shareholders and creditors.