| 摘要: |
| 中小企业是经济增长和创造就业机会的重要引擎。良好的公司治理对中小企业可持续发展具有重要作用。企业组织形式日趋融合，公司法立法的演进逐渐面向中小公司。中小公司股东人数少、股权转让受限，其治理不同于大型公司。中小公司所有权与经营权合一，法律在组织机构设置及其运行方面多为任意性规范；基于人合性保护目的，允许公司章程约定股份转让限制规则；中小公司代理成本集中在控制股东与中小股东之间，立法为控制股东滥用权利损害小股东权利提供事前和事后的救济措施。公司法修改提升中小公司治理灵活性，允许股份有限公司章程对股份转让做出限制，简化中小公司组织机构设置，优化组织机构职权配置。公司治理规则的修改也影响中小公司股东权利行使方式，公司章程可以扩大股东在经营方面的权利，股东基于监督权行使应当有更大的知情权，在权利行使方面公司章程有更多自治空间，司法应谨慎适用一人公司人格否认。未来应继续总结实践经验，优化公司类型设置，构建更为完善的中小公司治理机制。 |
| 关键词: 中小公司治理 灵活性 公司机构设置 公司法修改 |
| DOI： |
| 分类号: |
| 基金项目: |
|
| The New Company Law Enhances the Flexibility of Governance of Small and Medium-Sized Companies and its Application and Prospects |
|
Lin Yiying
|
|
|
| Abstract: |
| Small and medium-sized enterprises are an important engine of economic growth and job creation. Good corporate governance plays an important role in the sustainable development of small and medium-sized enterprises. The organizational forms of enterprises are becoming more and more integrated, and the evolution of company law legislation is gradually oriented to small and medium-sized companies. Small and medium-sized companies have a small number of shareholders and limited equity transfers, whose governance is different from large companies. The ownership and management rights of small and medium-sized companies are integrated, and the law is mostly arbitrary in the setting and operation of the organization. For the purpose of protecting personal compatibility, the articles of association of the company are allowed to stipulate the rules for restricting the transfer of shares; the agency cost of small and medium-sized companies is between the controlling shareholders and the small shareholders, and the legislation provides ex ante and ex post remedies for the abuse of rights by the controlling shareholders. The amendment to the Company Law enhances the flexibility of the governance of small and medium-sized companies, by allowing the articles of association of a company to restrict the transfer of shares, simplifying the organizational structure of small and medium-sized companies, and optimizing the allocation of functions and powers of the organizational structure. The amendment of corporate governance rules also affects the way in which shareholders exercise their rights, the articles of association of a company can expand the rights of shareholders in terms of operation, shareholders should have a greater right to know based on the exercise of the right of supervision, the articles of association of the company have more room for autonomy in the exercise of rights, and the judiciary should be cautious in applying the denial of one-person corporate personality. In the future, we should continue to summarize practical experience, optimize the setting of company types, and build a more complete governance mechanism for small and medium-sized companies. |
| Key words: Governance of Small and Medium-Sized Companies, Flexibility, Set-up of Company Organization, Amendment to the Company Law |
