中国《公司法》修订中公司治理模式的立法选择难题与规则改进

Abstract

In 2018, China launched a new round of company law revisions, in which the reform of corporate governance model is a key issue. Although the default shareholders primacy model adopted in the Third Review Draft of the Company Law (Revised Draft) has weakened the intensity of the shareholders’ meeting’s involvement in the board of directors’ business decision-making compared to the mandatory shareholders primacy model adopted in the First Review Draft of the Company Law (Revised Draft). However, during the revision process, the legislator still used the “one-size-fits-all” legislative technique to adopt a uniform corporate governance model for all types of companies, thus falling into the legislative choice of whether to choose a closed company or a public company as the normative template. The Third Review Draft of the Company Law (Revised Draft) chooses the closed company as the regulatory model and establishes the default shareholders primacy model. However, the essence of a public company is an entity composed of a vertical hierarchical governance structure and a horizontal synergistic governance structure,and the mandatory director primacy model is the systematic basis for the maintenance of the entity nature of the public company. At the level of the initial distribution of power, the company grants the board of directors the business decision-making power, and at the level of the redistribution of power, the rule of the board of directors’authority is mandatory. The shareholders’ meeting cannot intervene in the board’s business decisions by means of conflicting resolutions or amendments to the by-laws. The company law should reconstruct the type of joint-stock company, distinguish the joint-stock company into public company and closed joint-stock company, and adopt the mandatory director primacy model for the public company.