美国控制股东信义义务:本原厘定与移植回应

控制股东信义义务"移植论"存在方法论误用的缺陷,过度关注概念和规则的译介,而未深究其制度功能所关联的特定社会背景。信义义务根植于普通法特殊的历史土壤,以信托为"母体"并经归纳推理不断扩张泛化,"控制股东信义义务"是这种泛化现象的缩影,早期"受益人利益最大化"内涵已被"公平交易义务"取代。内涵演变的动因是对公司本质认知的进化以及因之发生的个人法向团体法逻辑的持续递进。我国控制股东滥权现象的主要成因并非规范资源不足,转轨时期"政企不分"的现实和公司法体系二元区隔的倾向亦不容忽视。美国关于交易公平性判断的程序性规则有助于克服法律行为评价系统的局限性,具有"复原"商业决策背景的功能,契合复杂的市场环境需求,是最具借鉴价值的部分。

American Controlling Shareholder's Fiduciary Duty: Its Origin and Its Transplantation in China

The transplantation of Controlling shareholders’ fiduciary duty in China is methodologically defective, with too much attention paid to the translation of its concept and rules but no attention paid to its institutional function fulfilled in its specific social context. In fact, the fiduciary duty is deeply rooted in the soil of the common law in special historical context, and with trust as the matrix, has been ever expanded and generalized through inductive reasoning. Controlling shareholders’ fiduciary duty is just the epitome of such generalization, and "the maximum benefit for the beneficiaries" at its earlier stage has already been replaced by "the duty of fair transaction obligation." As the understanding of the nature of company develops, the logic behind company law has shifted accordingly from the individual law to group law. In the transplantation of Controlling Shareholder’s Fiduciary Duty in China, the abuse of power by controlling shareholders is not caused by inadequate legal resources, but by the mixed functions of the government and enterprise during the transition period and also by the dual division of the company law system. To overcome the limitations of the Chinese legal behavior evaluation system, the procedural rules of the United States on the judgment of fairness of transactions can be of the most useful reference, since it helps to reestablish the background of business decisions, and tallies with the requirements of complicated market circumstances.