论诉讼中公司章程的功能与运用
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摘要
“现代公司是现代国家的缩影”,公司章程就犹如一个国家的宪法,它是公司存在和活动的基本依据,是公司行为的根本准则。公司章程对于整个公司正常运作的重要性虽然不言而喻,但是在公司法实践范畴内,公司章程遭到与预设相违背的境遇:它一方面具有不可或缺的重要性,而另一方面则又受到实务操作的冷落。在现实经济生活中我们看到的章程大都是互相抄袭,高度雷同,而且除了重复公司法已规定的内容之外,并没有多少更为细致的、可操作的规则;也有部分章程置法律、法规的强制性规定不顾而自行其是,造成与现行法律秩序之间的冲突和排斥。因此,只有在实践层面完善公司章程的应用,才能保障制度设计的章程功能实现。广义上分析公司章程具备四项功能:公司章程是设立公司的基本要件;公司章程具有公示作用;公司章程是公司内部的行为准则;公司章程作为国家对公司进行监督管理的依据之一。在诉讼实践中,由于对公司章程的性质存在不同认识,加之章程内容本身存在的欠缺,造成公司章程的具体诉讼功能发挥受到限制,不利于裁判者运用公司章程解决相关公司纠纷。本文通过比较分析将章程定位为自治法规,在发生相关公司纠纷时可以作为当事人证明己方主张的证据;可以作为对抗恶意第三人的理由,同时也是法院和法官作出裁判的有效依据。章程在诉讼活动中所具备的证明、对抗、准据三项功能,为司法者解决纠纷提供了路径选择。由于章程的效力低于法律,在运用章程进行裁判时需具体分析公司章程与公司法律规范之间的关系,明确在不违反法律、法规的强制性规定和公序良俗原则的前提下,公司章程在适用上具有优先性。对于当事人基于公司章程内容违法产生的争议纠纷,司法救济是重要的解决途径。确认章程无效、章程条款无效
"Modern companies are a microcosm of the modern country" . The articles of association are the primary basis of existence and activities of a company as well as the fundamental norms of corporate conduct just as a constitution is to a state. Although it is self-evident that the articles are important to the normal operation of a company, they are always disregarded by companies in fact, the result which is contrary to the purpose of the creation of the articles. Most of articles used by companies are almost the same in form and substance and their provisions are quite generic rather than specific for a particular company. Some articles are even in conflict of applicable laws and regulations. The only approach to fulfill the functions of the articles as contemplated for its creation is to improve the applicability and practicability of the articles. Generally, the corporate articles contain four functions: the articles are a fundamental element for establishment of a company; the articles have the effect of declaration; the articles are the norms of internal conduct of a company; the articles are one of instruments used by state to regulate companies. The litigation function
of the articles is restricted in the lawsuit due to people' s diversified understanding of nature of the articles and the flaws in the provisions of the articles, thus impeding the tribunal' s efforts to solve corporate disputes by reference to the articles. This paper attempts to identify by using the method of comparable analysis the articles as the self-governing bylaws which may be used as evidence for claims and allegation of a party in any case relating to corporate disputes, or as causes against a hostile third party, or as effective basis for any judgment made by court. The articles' functions of proof, defense and governing in litigation will provide an alternative approach to tribunal in solving disputes. The effect of the articles shall not override applicable laws, thus the relationship between the articles and applicable laws shall be analyzed when the articles are applied to in judgment making. The priority shall be given to the application of the articles without prejudice to compulsory provisions of laws and regulations and public order. The judicial remedy is an important settlement mechanism to disputes arising out of performance of the articles. The following three principles shall be adhered to when using judicial remedies to verify the invalidation of the articles or to alter the articles: corporate internal remedies shall be exhausted; judges shall be reluctant to interfere and companies shall be exist.
"Modern companies are a microcosm of the modern country" . The articles of association are the primary basis of existence and activities of a company as well as the fundamental norms of corporate conduct just as a constitution is to a state. Although it is self-evident that the articles are important to the normal operation of a company, they are always disregarded by companies in fact, the result which is contrary to the purpose of the creation of the articles. Most of articles used by companies are almost the same in form and substance and their provisions are quite generic rather than specific for a particular company. Some articles are even in conflict of applicable laws and regulations. The only approach to fulfill the functions of the articles as contemplated for its creation is to improve the applicability and practicability of the articles. Generally, the corporate articles contain four functions: the articles are a fundamental element for establishment of a company; the articles have the effect of declaration; the articles are the norms of internal conduct of a company; the articles are one of instruments used by state to regulate companies. The litigation function
of the articles is restricted in the lawsuit due to people' s diversified understanding of nature of the articles and the flaws in the provisions of the articles, thus impeding the tribunal' s efforts to solve corporate disputes by reference to the articles. This paper attempts to identify by using the method of comparable analysis the articles as the self-governing bylaws which may be used as evidence for claims and allegation of a party in any case relating to corporate disputes, or as causes against a hostile third party, or as effective basis for any judgment made by court. The articles' functions of proof, defense and governing in litigation will provide an alternative approach to tribunal in solving disputes. The effect of the articles shall not override applicable laws, thus the relationship between the articles and applicable laws shall be analyzed when the articles are applied to in judgment making. The priority shall be given to the application of the articles without prejudice to compulsory provisions of laws and regulations and public order. The judicial remedy is an important settlement mechanism to disputes arising out of performance of the articles. The following three principles shall be adhered to when using judicial remedies to verify the invalidation of the articles or to alter the articles: corporate internal remedies shall be exhausted; judges shall be reluctant to interfere and companies shall be exist.
引文
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