发布时间：2019-05-05 来源于：广东广信君达律师事务所闪涛、杨武君
2019年4月28日，最高人民法院发布《最高人民法院关于适用<中华人民共和国公司法>若干问题的规定（五）》（以下简称“《规定》”）。《规定》在现有法律制度框架内对中小投资者权益保护等相关制度进行了完善，对充分发挥法院司法职能、平等保护各方主体权益、严格规范交易行为，打造市场化法制化的营商环境具有重大意义。
On April 28, the Supreme People's Court issued the Supreme People's Court Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (5) (hereinafter referred to as the Regulations). Under the framework of the present legal system, the Regulations has improved the relevant systems for the protection of the interests of small and medium-sized investors, and it is of great significance for fully exerting the judicial functions of the courts, equally protecting the rights and interests of all parties, and strictly regulating trading behaviors, and creating a market-oriented legal business environment.
part 1. 《规定》重点解决了以下几点问题
The Regulations has focused on solving the following five major problems
1. 明确了履行法定程序不能豁免关联交易赔偿责任
Clarified that the performance of legal procedures cannot be exempted from liability for related party transactions
司法实践中，公司的大股东、控股股东、董事和高管利用关联交易从事转移资产、转移技术、转移利润的行为屡见不鲜，严重损害了其他股东和债权人的利益，而相关侵权方多以履行了内部决策程序为由进行抗辩，主要表现为经过了公司股东会或董事会决议批准，且行为人按照规定回避表决等。上述行为多导致其他股东和债权人无法追究侵权方的责任。
In judicial practice, it is common occurrence that the company's major shareholders, controlling shareholders, directors and senior executives use related party transactions to transfer assets, transfer technology, and transfer profits. It seriously damages the interests of other shareholders and creditors, and the relevant infringers often argue that they have fulfilled the internal decision-making procedures, mainly because it has been approved by the company's shareholders' meeting or the board of directors, and the actors evaded voting according to regulations. Many of the above actions have caused other shareholders and creditors to fail to hold the infringer accountable.
因此，《规定》第一条明确，尽管交易已经履行了相应的程序，但如果违反公平原则，损害公司利益，公司依然可以主张行为人承担损害赔偿责任。鉴于关联交易情形下，行为人往往控制公司或者对公司决策能够产生重大影响，公司本身很难主动主张赔偿责任，《规定》还明确股东在相应情况下可以提起代表诉讼，从而给中小股东提供了追究关联人责任、保护公司和自身利益的利器。同时该条还规定，控股股东、实际控制人、董事、监事、高级管理人员均可列为被告，进一步强化了相关人员的信义义务。
Therefore, Article 1 of the Regulations stipulates that although the transaction has already fulfilled the corresponding procedures, if the principle of fairness is violated and the interests of the company are harmed, the company can still claim that the actor is liable for damages. In view of the related party transactions, the actors often control the company or have a significant impact on the company's decision-making. It is difficult for the company itself to actively claim compensation. The Regulations also stipulates that the shareholders can file a representative lawsuit under the corresponding circumstances, thus providing the minority shareholders with a tool to investigate the responsibility of affiliates and protect the company and its own interests. At the same time, the article also stipulates that the controlling shareholder, the actual controller, the directors, the supervisors and the senior management personnel can be listed as defendants, which further strengthens the beneficiary obligations of the relevant personnel.
2. 赋予股东请求确认关联交易合同无效或者请求撤销关联交易合同的权利
Giving shareholders the right to request confirmation of the invalidity of the related party transactions contract or request to cancel the related party transaction contract
关联交易是关联人通过关联关系促成的交易，而关联人往往控制公司或者对公司决策产生重大影响，即使合同存在无效或者可撤销的情形，公司本身也很难主动提出请求。故在关联交易中，公司没有起诉合同相对方的，符合条件的股东可根据法律规定提起股东代表诉讼，来维护公司利益，进而维护股东自身利益。《规定》第二条在一定程度上扩展了股东代表诉讼的适用范围，将之扩大到关联交易合同的确认无效和撤销纠纷中，也进一步明确了股东的诉讼主体地位。
A related party transaction is a transaction that the related party promotes through the related relationship, and the related party often controls the company or has a significant impact on the company's decision-making. Even if the contract is invalid or revocable, the company itself is difficult to make a request. Therefore, in the related party transactions, the company did not sue the opposite party of the contract. Eligible shareholders may file a shareholder representative lawsuit in accordance with the law to safeguard the company's interests and thereby to protect the shareholders' own interests. Article 2 of the Regulations expands the scope of application of shareholder representative litigation to a certain extent, and expands it to the confirmation of invalidation and cancellation of related party transactions, and further clarifies the subjective position of shareholders.
3. 规范了董事职务的无因解除与离职补偿
Standardized the dismissal of directors' posts without any reasons and compensation for loss of office
《规定》出台之前，我国法律法规对公司与董事的关系、董事职务的解除并没有相关规定。本次《规定》第三条明确了两个问题：
Before the promulgation of the Regulations, China's laws and regulations have no relevant provisions on the relationship between the company and the directors and the dismissal of directors. Article 3 of the Regulations clarifies two issues:
①厘清了公司与董事的关系，明确了公司可以随时解除董事职务。公司法理论研究与司法实践中已基本统一认识，即公司与董事之间实为委托关系，依股东会的选任决议和董事同意任职而成立合同法上的委托合同。既然为委托合同，则合同双方均有任意解除权，无论任期是否届满，公司可以随时解除董事职务，董事也可以随时辞职。
The relationship between the company and the directors was clarified, and the company was able to dismiss the directors at any time. The theoretical research of the company law and the judicial practice have basically unified understanding, that is, the company and the directors are actually entrusted, and the entrusted contract of the Contract Law is established according to the election resolution of the shareholders meeting and the directors’ agreement to serve. Since it is an entrusted contract, both parties to the contract have the right to arbitrarily cancel the contract. The company can cancel the director's position at any time regardless of the expiration of the term of office, and the director can resign at any time.
②被解除职务的董事有权获得合理补偿。无因解除并不能损害董事的合法权益。为防止公司无故任意解除董事职务，《规定》明确董事被解除职务后有权获得合理补偿，并对法院审理此类案件时的自由裁量权行使进行了相应指引。此外，因为公司与董事之间不是劳动合同关系而是委托关系，故董事的补偿不适用《劳动合同法》，相关纠纷也不适用劳动仲裁程序，而应按照《合同法》关于委托合同的相关规定和民事诉讼法来处理。
Directors who have been dismissed are entitled to have reasonable compensation. The dismissal without any reasons can not damage the legitimate rights and interests of the directors. In order to prevent the company from arbitrarily dismissing directors for no reason, the Regulations stipulates that directors are entitled to have reasonable compensation after being dismissed from their duties, and provides guidance on the exercise of discretion in the courts for solving such cases. In addition, because the company and the director are not labor contract relationships but entrusted relationships, the directors' compensation does not apply to the Labor Contract Law, and the relevant disputes are not applicable to the labor arbitration procedure, but should be related to the entrusted contract in accordance with the Contract Law and the Civil Procedure Law to deal with.
4 确定了公司分配利润的时限
Determined the time limit for the company profit distribution
《规定》第四条在《公司法司法解释四》的基础上确定了利润分配的完成时限，明确公司至迟应当自作出分配决议之日起一年内完成利润分配，充分保护股东权利。
Article 4 of the Regulations determines the time limit for the completion of profit distribution on the basis of the Judicial Interpretation 4 of the Company Law, and clarifies that the company shall complete the profit distribution within one year from the date of the resolution of the distribution, which fully protects the rights of shareholders.
此外，鉴于可能存在决议中载明的分配时间超过章程规定时间的情形，而股东可能更希望按照章程规定的时间进行分配，因此本条还明确了股东可申请撤销“决议中载明的利润分配完成时间超过公司章程规定时间的”相关内容。
In addition, in view of the possibility that the distribution time specified in the resolution exceeds the time specified in the charter, and the shareholders may prefer to distribute according to the time specified in the charter, this article also clarifies that the shareholder may apply to cancel the completion of the profit distribution specified in the resolution. "Related content beyond the time specified in the company's articles of association".
5. 构建了有限责任公司股东重大分歧解决机制
Constructed a major disagreement mechanism for shareholders of limited liability companies
在以往的司法实践中，法院审理公司解散纠纷在内的股东重大分歧案件时，只能做出解散或者不予解散的判决，即便有替代性的解决方案，法院也往往找不到法律依据。《规定》第五条明确，人民法院通过在诉讼过程中指引股东协商解决分歧，以调解方式解决股东退出问题，为法院协助当事人找到解决有限责任公司僵局的替代性解决方案提供了法律依据。
In the past judicial practice, when a court heard a major disagreement of a shareholder, including a company's dissolution of a dispute, it could only make a judgment that it shall be dissolved or not be dissolved. Even if there is an alternative solution, the court often cannot find a legal basis. Article 5 of the Regulations stipulates that the people's courts, through guiding the shareholders to negotiate settlements during the litigation process, can resolve the issue of shareholder withdrawal by mediation, which provides a legal basis for the court to assist the parties in finding an alternative solution to the deadlock of the limited liability company.
Part.2 对《规定》存在问题的分析和提示
Analysis and tips on the problems in the Regulations
1. 对股东知情权的保护有待进一步落实
The protection of shareholders' right to know needs further implementation
股东能否按照《规定》制定的救济途径就关联交易行为提起诉讼、追究关联人的责任、维护公司和自身利益，取决于股东对关联交易情形是否充分知晓。如果中小股东对相关情况并不知晓或并不掌握相关细节，很难有证据提起诉讼并赢得诉讼。
Whether shareholders can sue for related party transactions in accordance with the remedies formulated by the Regulations, investigate the responsibilities of related parties, and safeguard the company and its own interests depends on whether shareholders are fully aware of the connected transactions. If the minority shareholders are not aware of the relevant situation or do not have the relevant details, it is difficult to have evidence to file a lawsuit and win the lawsuit.
如前所述，关联交易的行为人往往控制公司或者对公司决策能够产生重大影响，司法实践中股东（主要是中小股东）在行使法律赋予的知情权的过程中本身就面临较大的困难，而且股东知情权也并没有赋予股东可以查看股东关联交易信息和关联交易合同的权利。如何有效保证股东对关联交易的知情权，直接关系到《规定》第一条、第二条能否得到有效落实，这一问题尚待进一步明确和落实。
As mentioned above, the actors involved in connected transactions tend to control the company or have a significant impact on the company's decision-making. In judicial practice, shareholders (mainly small and medium-sized shareholders) face greater difficulties in exercising the right to know under the law. Moreover, the shareholder's right to know does not give shareholders the right to view the relevant party transaction information and related party transactions. How to effectively guarantee shareholders' right to know about related transactions is directly related to whether Articles 1 and 2 of the Regulations can be effectively implemented. This issue needs to be further clarified and implemented.
2. 重点关注股东为维护公司及个人利益的起诉权
Focusing on the rights of shareholders to defend the interests of the company and individuals
《规定》出台之前，《公司法》第一百五十一、一百五十二条等条款对股东维护公司及个人利益的起诉权进行了规定，但并不包括关联交易相关情形。《规定》的出台赋予了股东就关联交易进行起诉的权利，而且控股股东、实际控制人、董事、监事、高级管理人员均可列为被告。股东尤其是中小股东需对该规定予以重视，并在实践中正确理解和有效运用。
Before the promulgation of the Regulations, Articles 151 and 152 of the Company Law stipulats the rights of shareholders to defend the company and personal interests, but do not include related transactions. The promulgation of the Regulations gives shareholders the right to sue for related party transactions, and the controlling shareholder, actual controller, directors, supervisors and senior management personnel as defendants. Shareholders, especially small and medium-sized shareholders, need to pay attention to this regulation and correctly understand and effectively use it in practice.
3. 区别对待董事和公司的关系
Differentiating the relationship between directors and companies
董事与公司之间的关系是委托关系而非劳动合同关系，董事与公司之间的相关纠纷适用合同法、民事诉讼法的有关规定。双方之间关系的建立，并非由公司与董事签订劳动合同，而应该是公司的权力机关与董事签订委托合同。
The relationship between the director and the company is the entrusted relationship rather than the labor contract relationship. The relevant disputes between the director and the company apply the relevant provisions of the Contract Law and the Civil Procedure Law. The establishment of the relationship between the two parties is not the conclusion of the labor contract between the company and the director, but the authority of the company to sign the entrustment contract with the director.
值得注意的是，我国公司中还存在职工董事。职工董事不由公司的权力机关任免，因此不存在股东会或股东大会决议解除其职务的情形，职工董事与公司之间是劳动合同关系而非委托关系。
It is worth noting that there are still employee directors in our company. The employee directors are not appointed or removed by the company's authority. Therefore, there is no resolution of the shareholders' meeting or the general meeting of shareholders to cancel their duties. The employee directors and the company are labor contractual relationships rather than entrusted relationships.
4. 需与公司法关于股权转让相关规定相协调
Coordination with the relevant provisions of the Company Law on equity transfer
《规定》第五条明确人民法院审理涉及有限责任公司股东重大分歧案件时，对当事人协商一致处理纠纷的方式进行了列举，其中第（一）至（三）项为公司回购部分股东股份、其他股东受让部分股东股份、他人受让部分股东股份。该规定如何得到贯彻落实，均涉及到《公司法》等现有法律框架中关于股权转让的相关规定。《规定》第五条如何与已有的股权转让规定相协调，仍有待进一步明确。
Article 5 of the Regulations clarifies that when the people's court hears cases involving major differences of shareholders of a limited liability company, it enumerates the ways in which the parties handle disputes by consensus. Among them, items (1) to (3) are for the company to repurchase part of the shareholders' shares. Other shareholders transfer shares of some shareholders and others to transfer shares of some shareholders. How the Regulations is implemented involves the relevant provisions on equity transfer in the present legal framework such as the Company Law. How to harmonize Article 5 of the Regulations with the present equity transfer regulations remains to be further clarified.