董事辞职留任规则的制度逻辑

Institutional Logic of Director Resignation and Retention Rules

新《公司法》勾画了董事辞职规则的基本框架,但仍需通过公司法理论研究进行细节填充以满足司法裁判需求。董事与公司之间是以委托合同为基础而具有公司法特色的法律关系。董事和公司均有权根据自身意思自治提出辞职(解任)要求,而无须相对方同意。董事辞职导致董事会人数低于法定下限的,触发法定的留任义务以确保公司的经营持续,并为公司股东会选任新董事预留充分时间。董事辞职后无论是否发生法定留任,其兼任的法定代表人职务均应解除。董事留任期间内,公司股东会应尽快考察、选举新任董事。

The new Company Law outlines the basic framework of director resignation rules,but leaves room for details through theoretical researches of company law to meet the needs of judicial judgment.The legal relationship between the director and the company is based on commission contract and has the characteristics of company law.Both the director and the company have the right to resign or dismiss at their own discretion without the consent of the other.If the resignation of a director results in the number of directors on the board falling below the statutory lower limit,the statutory retention obligation shall be triggered to ensure the continued operation of the company and allow sufficient time for shareholders meeting to elect new directors.Whether statutory retention occurs after the resignation of a director or not,his concurrent position as legal representative shall be removed.Shareholders meeting shall investigate and elect new directors as soon as possible during the retention period.