没有“后果”的公司法?——论公司法上的恢复原状

Corporate Law without"Consequences"?——Restoration to the Original State in Corporate Law

由于法律后果规范的不足,在民商合一理念的影响下,公司法上面临着套用民法默认规则“恢复原状”影响组织秩序稳定的难题。该难题并没有因为2023年《公司法》的修订完全得到解决。“恢复原状”是建立在民法上法律行为评价、民事责任承担和法律关系后果处理的概念,以回到行为未发生时的状态为目标。实践表明,“恢复原状”在公司法中的适用场景有限,公司组织行为不以“意思表示”为核心,公司组织责任也不以“财产关系的恢复”为结果,基于“民事权利”构造的“民事责任”,亦不能替代基于“组织身份”产生的“商事责任”。因此,法律不应预设“失败”组织行为的当然变动方向,“恢复原状”只能是组织财产变动事项的有限例外。组织行为救济的目标不只是“回到过去”,还要“停在当下”,甚至“面向未来”。在解释立场上,应当认识到组织责任的特殊性,严格限定“恢复原状”的适用范围,根据公司设立、运营和终止不同阶段的特点,填补组织法上法律后果的空白。

For a long time,the corporate law lacks clear norms on the legal consequences of acts related to corporations.Due to the influence of the combination of civil and commercial,the corporate law faces the difficulty of applying the default rules of civil law to"restore to the original conditions",which affects the stability of the organization order.Although the theory has developed complex rules of validity in an attempt to minimize these effects,it has also led to the prevalence of"disrespect for the law"in corporate practice,such as the illegal corporate guarantees,the illegal reduction of capital,and the illegal nominee stock holdings.This problem has not been completely solved by the revise of the Company Law of the People's Republic of China 2023."Restoration to the original conditions"is a concept based on the evaluation of juridical acts,assumption of civil liability and treatment of the consequences of legal relations in civil law,with the goal of returning to the state that existed at the time when the act did not take place.Practice shows that"restoration to the original conditions"has limited application in the corporate law.For example,the transfer of equity will be restricted by the changes of corporation's equity/capital structure and the constant validity rules of securities transactions,the appointment and removal of directors will be restricted by the corporation's election procedures.It can be seen that"restoration to the original state"in corporat law is not only about the property interests,the acts related to corporations is not based on the"declaration of will"as the core,and the liabilities related to corporations is not based on the"restoration of property relations"as the result,and the"civil liability"constructed on the basis of"civil rights"is also no substitute for"commercial liability"based on"organizational identity".Therefore,the law should not presuppose a direction for"failed"acts occurring in the organization,and restoration to the original conditions"can only be a exception to matters involving property in corporate law.The goal of remedies for acts occurring in the organization is not only to"return to the past",but also to"stop at the present"or even to"face the future".In terms of interpretation,the special nature of the organization should be recognized,and the scope of application of"restoration to the original conditions"should be strictly limited,so as to fill the gaps in the legal consequences of the organization law in accordance with the characteristics of the different stages of the establishment,operation and termination of the corporation.Specifically,the solution to the difficulty of applying"restoration to the original conditions"in corporation law needs to start from the following two aspects.First,dare to invalidate acts related to corporations.Second,interpret the legal consequences according to the different stages.For corporations at the establishment stage,since the relationship formed between the shareholders is still only of a certain organizational nature,the rules of"restoration to the original conditions"can be partially applied,which is called"return to the past".For corporations at the operation stage,priority should be given to preserving the survival and development of the corporation,which is called"face the future".For corporations at the termination stage,since the corporation is no longer able to engage in new business,"stop at the present"should be the goal,such as liquidating,defining and distributing properties.