从“孟文公案”中的优待股论争看类别股权益的平衡路径

The Path to Balance of Share Class Rights in the Public Case Debate of Preferential Share Rights in Meng’s Article

孟勤国教授的《法官自由心证必须受成文法规则的约束——最高法院(2013)民申字第820号民事裁判书研读》曾引发法律界的激烈论争,几乎酿成一桩公案。遍览该案三级法院裁判、孟文内容以及参与各方攻防论据,大多涉及程序法问题,对该案实体争议焦点如620股优待股权益性质及其处分权利、590股现金股质押的效力、是否违反流质禁止规定、被告有无权利抵扣债务等,均未充分论证。其中优待股虽然在《公司法》中难觅踪影,也与近年推行的优先股有所不同,但孟文质疑的法律效力难以否定。迄今为止,尽管论争几近平息,遗留问题却远未解决。现实中权能特别设计的股权繁复多样,远非普通股、优先股的传统分类所能涵盖,公司章程自治规则应予充分尊重,类别股权益的平衡路径亦宜交由公司自行选择决定。

Professor Meng Qinguo from Wuhan University published in The Law Review,the 4 th issue of 2015,'Judges’ Free Evidence Must Comply to the Statute Rules-A Study on Supreme People’s Court(2013) Civil Shen Zi No. 820 Civil Ruling'. The article provoked fierce debate in the legal profession and has almost led to a public case. Reading through the three-tier court decisions,the content of Meng’s article,and the arguments from both sides,these mostly involved procedural law issues. There is lack of argument and demonstration on the focus of the dispute on this case such as the nature of the 620 preferential shares of and its disposal rights,the effectiveness of the pledge of the 590 shares in cash, whether there was the violation of the liquidity prohibition or whether the defendant has the right to offset the debt. Preferential share is difficult to trace in 'Company Law',it is also difference from the implementation of preferred shares in recent years,but its legal validity being questioned in Meng’ s article is also hard to deny. So far,although the controversy has almost subsided, the remaining problems are far from being solved. In reality, shares with rights specially designed can be numerous and varied,far beyond the traditional classification of common shares and preferred shares. The rules of autonomy in the Articles of Incorporation should be fully respected, and the path to balance of the rights of share classes should also be left to the company’s own choice.