The Logical Turn in Optimizing the Procedural Norms of the Company Law(PDF)
《南京师大学报》（社会科学版）[ISSN:1006-6977/CN:61-1281/TN]
- Issue:
- 2023年01期
- Page:
- 124-134
- Research Field:
- 法学研究
- Publishing date:
Info
- Title:
- The Logical Turn in Optimizing the Procedural Norms of the Company Law
- Author(s):
- LIN Shaowei
- Keywords:
- revision of the company law; procedural norms; shareholders' rights; corporate autonomy; localization of company law
- PACS:
- -
- DOI:
- -
- Abstract:
- The traditional idea of stressing substance and despising procedure leads to many deviations in the procedural norm of the Company Law, which triggers the internal drawbacks, such as the weakening of shareholders' right, the disorderly exercise of power by the directors and the failure of supervision mechanism; as well as the external drawbacks, such as the uncertainty of transaction safety and the vagueness of social responsibility. Therefore, we should reshape the value and function orientation of procedural standards of the Company Law, and realize that procedural standards are not only the inevitable path to the second modernization of the Company Law, but also the necessary guarantee for the independent will of the corporations. Procedural norms can not only correct the heterogeneity of interests among the corporations, but also respond to the development of intelligent technology revolution in a timely manner. Against the background of the new revision of the Company Law, the optimization of the procedural norms of the Company Law should have a breakthrough in the following basic logics: in terms of positioning logic, it should be transformed from instrumentalism to departmentalism; in terms of value logic, it should be transformed from internal governance to system governance; in terms of field logic, it should be transformed from regulation-autonomy unipolarity to menu selection; in terms of initiating logic, it should be transformed from external program to endogenous program; and in terms of goal logic, it should be transformed from passive response to proactive prevention. As a result, the reasonable and localized company law could be formulated.
Last Update: 2023-02-25