The Spirit Of Company Law In China: Its Aberration And Its Regain

The spirits of laws was usually discussed as a whole or by the branch laws. This thesis, further more, discusses the spirit of a specific part of a branch law, i.e., it's on the spirit of company law, in which it refers the basic idea or will about company law that determines the produce and development of company law and remains consistent through the whole process of the operation of company law, of which modern soul involves of company autonomy, company freedom, socialization of ownership, institutional justice and business ethics relating to risk interest.However, the practice of company law in China develops severe aberration from the spirit of modern company law, which analyses with a positive method in this thesis. In China, the source of company rights is so "personally" bonded that some "special" types of companies are produced, e.g., "administrative company", "community company", "family company" and so on. The shortage of such kind a company is obvious: the corporate governance is severely bureaucratized, the consciousness of company rights is weak, the company charter is copied mechanically from the company law, the reformation of the state enterprise is not normalized, which make the workers' statue enfeeble and the company's democracy lost. In such context, some newly imported or currently discussed institutions such as "independent director system", "piercing the corporate veil" would also face the danger of being aberrant. We can see that there is its character background in such phenomena. That is the deep-rooted spirit of pre-modernization that involves of the right-duty-idea of society priority, the "corrupt" of public relationship, the development view of government orientation. In this condition, the goal of the transplantation of company law cannot realize and the project to establish modern enterprise system will fail. So, to regain the true spirit of company law becomes thenecessary choice of legal transplantation and modernization, becomes the fundamental requirement to establish modern enterprise system of China.On this basis, the thesis inquires the cause of the aberration of company law in China not only from the view of inner company system but also from the relationship between company and state, society and history. First, there is the tension of Aristotelian "distribution justice" and "corrective justice" in the organization of company; the socialization of ownership brings up the conflicts between ownership and managerial authority; and in company's principal-agent system, the problem of asymmetric information exists. Meanwhile, China is still in the dual social circumstances of modernization and transformation, and Chinese company has been the stage of the struggle and cooperation of capital owners and workers, the stage of the opposition and compromises of government power and individual freedom, the stage of the interplay of globalization and national interests. Thus, the spirit of company law in China, inevitably, has occurred severe aberration because of the stagnation of legislation, judiciary and enforcement of company law and the function and development of lawyer se.Our tasks are onerous. Firstly, we must build up the faith and authority of company law. Let the company law be not only to the company but also to the government and its officer. Secondly, we must erect the concept of institutional justice in company and intake the spirit of company democracy. The third, we verificate company personality should be in term of "contract" instead of "status". We should recast the merchant spirit that more profit connotes more venture. We emphasis the efficiency but the justice of company law should not be ignored at the same time. By the way, we must make much of the source of autochthonous spirits of company law.