封閉型公司股東權益保護的立法完善──以“股東直接訴訟”為切入點

Amendments of the Protection of Shareholders' Rights and Interests in Closed Companies: Breaking Through ''Shareholder's Direct Action''

“股東直接訴訟”以《公司法》第152條為依據，是股東權益的保護機制，但該法條被置於《公司法》的“董事等高管義務與責任”章。通過對第152條司法實踐的考察，發現該制度缺乏適用空間，究其根源在於：董事等高管受任於公司，且公司具有獨立法人人格。在我國，董事等高管信義義務的受益對象只能是公司而非股東，董事等高管與股東間的利益衝突無法構成。另外，司法實踐還從側面反映了我國封閉型公司中股東權益遭受損害主要來自控制股東的“濫權”行為。雖現行《公司法》第20條對股東“濫權”行為進行了規範，但由於其過於簡陋，無法滿足現實的需求。《公司法》的修訂不能僅停留於完善關於“控制股東”的行為規範，更應從體系層面予以考量：將公司組織類型劃分為封閉型公司和開放型公司；根據不同類型公司控制股東“濫權”行為的不同表現，分而治之，以期從根本上解決矛盾，實現股東權益保護的立法目的。

"''Shareholders' direct action'' is based on Article 152 of Chinese Company Law, which is the protection mechanism of shareholders' rights and interests. However, this article is placed in the chapter of ''obligations and responsibilities of directors and other senior executives'' of the Company Law. Based on the judicial practice of Article 152, it is found that the system lacks applicable space, and its root lies in: Directors and other executives are ''appointed'' by the company, and the company has independent legal personality, so the beneficiaries of directors and other executives' fiduciary duty can only be the company rather than shareholders, and the conflict of interests between directors, other executives and shareholders can't be formed. In addition, the judicial practice also reflects that the damage to shareholders' rights and interests in the closed companies mainly comes from the ''abuse of power'' behavior of controlling shareholders. Although Article 20 of the Company Law regulates the ''abuse of rights'' of shareholders, it is too simple to meet the needs of reality. The revision of the company law should not only improve the behavior norms of ''controlling shareholders'', but also be considered from the system level: According to the different behaviors of controlling shareholders' abuse of power in different types of companies, it should be dividedly ruled, so as to fundamentally solve the contradiction, and realize the legislative purpose of protecting shareholders' rights and interests."