法学研究

文章摘要

公司法上社会责任条款司法化的逻辑与再塑

The Judicial Application Logic of Corporate Social Responsibility Rule in Company Law and Its Reconstruction

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英文关键词: corporate social responsibility; corporate interest; stakeholder; fiduciary duty; liability for breach of fiduciary duties

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作者	单位
吴维锭

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中文摘要:

基于特殊的法条构造、文化和制度背景，中国公司法上社会责任条款的司法化呈现的是一种分配逻辑，旨在向非股东利益相关者分配公司利益或股东利益。分配逻辑错置了公司社会责任条款的规范对象，偏离了立法目的，不符合非股东利益相关者保护的立法趋势。公司法上社会责任条款之司法化应当回归工具主义理念，以实现股东整体长期利益为目标，以公司组织内部法律关系而非公司参与的外部法律关系为规范对象。在路径上，应以违信责任之诉为核心，因决议无效之诉和强制盈余分配之诉的作用相对有限，而公司解散之诉不宜适用。在违信责任之诉，对于违反公司社会责任条款之判断，可区分董事会决议和公司日常经营两种情形，即董事会在决议中未考量或者未适当考量关键社会责任因素，以及公司日常经营中未针对关键社会责任因素建立有效运作的信息和报告系统，或者未对信息和报告系统识别出的风险事件作出适当反应。公司法上社会责任条款违反之后果应为董事的赔偿责任，公司治理改善等方面的行为责任不宜引入。

英文摘要:

Based on the special structure of the rule, cultural context and institutional background, the judicial application of the corporate social responsibility rule in Chinese company law follows the allocation logic, aiming to transfer interests from companies or shareholders to non-shareholder stakeholders. The allocation logic misplaces the normative object of the corporate social responsibility rule, deviates from the legislative purpose, and does not conform to the legislative trend of protecting non-shareholder stakeholders. The judicial application of the corporate social responsibility rule in company law should return to the instrumentalist concept with the goal of achieving the overall long-term interests of shareholders, and it should take the internal legal relationships of the company organization rather than the external legal relationships of the company as its regulatory object. In terms of approach, the lawsuit of breach of fiduciary duty should be taken as the core, the lawsuits of nullification of resolutions and compulsory surplus distribution should have a relatively limited role, and the lawsuit of company dissolution should be excluded from the judicial application landscape. In the lawsuit of breach of fiduciary duty, violations of the corporate social responsibility rule can be classified into two situations, i.e., board resolution and daily operation of the company, with the former referring to the situation in which the board of directors fails to consider or to properly consider critical social responsibility factors in its resolution and the latter referring to the situation in which the company fails to establish an effective information and reporting system to monitor critical social responsibility factors in its daily operations or to respond appropriately to risk events identified by the information and reporting system. Violations of the corporate social responsibility rule should result in monetary liability for directors and it is not appropriate to introduce behavioral liabilities such as reforming corporate governance.

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