On The Balance Between Corporate Autonomy And State Intervention

This discussion stems from the subject of judicial intervention in the crisis of corporate governance, and when we discuss the subject, we must admit a premise is: the balance between corporate autonomy and state intervention is feasible. But in the previous theory, a basic understanding is:the relationship between corporate autonomy and of exclusive state intervention is exclusive heterogeneity, and it is difficult to balance the corporate autonomy and state intervention, we can never find where the interface between the two is. Therefore, this paper decided to reflect on the root causes. For the purpose to balance, the idea of corporate autonomy and the attitude and model of state intervention must reposition, and on this basis, we may build the balance between corporate autonomy and state intervention.This thesis is mainly divided into five parts:The first part we will introduce American and Chinese corporate governance crisis and the judiciary's role in crisis, summarize the root of the problem which is difficult to balance corporate autonomy and state intervention, and compare the common defects when the two states face the process of dealing with the relationship between corporate autonomy and state intervention, and finally we can conclude that "wrong positioning ultimately lead to contradiction of the two."The second part is repositioning the corporate autonomy. If we want to balance them, the corporate autonomy should not stay in the self of an absolute autonomy, or the absolute autonomy of some party, the autonomy should be collective and open, so the company re-positioning should be relatively autonomous self-government, not absolute autonomy; also a legal entity rather than autonomy of shareholders. And then, as the need for corporate autonomy balanced with state intervention, the defects of corporate autonomy will be supplemented by discussion.The third part is repositioning the attitude and mode of state intervention. Firstly the basic principle of state intervention is to maintain an appropriate nature. Due to moderation, the state intervention which is centered by judicial intervention finally can be reconstructed. From the nature of the legislative, judicial and administrative interventions, the administrative supervision for its thick mandatory colors must exercise restraint, and the effect of legislation is also very limited for its stability. So judicial intervention has become the most appropriate intervention means. The repositioning mode of state intervention should change the limited legislation effect, negative judicial intervention and excessive administrative supervision, and establish the appropriate mode which is centered by judicial intervention, and also supplemented by legislative control and administrative supervision. And this is the premise and foundation of state intervention which can be balanced with the corporate autonomy.The fourth part will find the various root causes of balance between corporate autonomy and state intervention within the philosophy of law. From the value source, the efficiency value representing the corporate autonomy and the fair value on behalf of state intervention can be integrated in the balanced order value. From the system source, Hayek's law and legislative idea hold that the role of human reason is very limited, however, he still can not denied the effect of human reason upon the law and legislative, which makes us realize that even the most free corporate autonomy still need the correction of state intervention. Finally from the practical source, legal culture is a key factor of the balanced relationship. Compare to the U.S. legal culture which is full of too much freedom, our culture needs to play down the public culture and transform the rule of man into the rule of law.The final part will specifically build the balanced relationship between corporate autonomy and state intervention on the basis of the above thinking. The first point of the balanced relationship is the principle of autonomy, which requires us to follow the priority of corporate autonomy objectives on the whole, and specifically we should regard the relative autonomy as the prerequisite, and the corporation autonomy as the main body. At the same time, the other side of the balanced relationship requires a moderate state intervention. This moderation reflected not only in an "appropriate" mode of cooperation, namely:to establish a state intervention model which is centered by judicial intervention, and combined with free legislation and transformed administrative supervision; but also in the specific operation of the state intervention "degree" which includes motivation, timing and manner of the intervention, and certainly these will contribute to strengthen the operation of "moderate" state intervention.