社团罚抑或合同罚:论股东会对股东之处罚权——以“安盛案”为分析样本

发布时间：2019-07-11 17:40

【摘要】：在安盛案中,法院认为公司章程可以规定股东会之罚款权,但应明确其标准、幅度,否则股东会作出的处罚决议属无效决议。股东会的处罚权,可以有多种解释角度——公司作为一种私法组织,有"刚性的内部治理"——设定处罚的权利,这种权利可能体现为私法组织的"内部自治性制裁权"(社团罚),也可能体现为"私法责任形式"(合同罚),在股东会处罚权设定不完备之情形,还可运用"推定技术"使其得以实施。因此,安盛案中法院对股东会处罚权之有无的判断是正确的,但对其具体运用/实施的判断,则过于简单。就此而言,安盛案作为最高人民法院之公报案例,其指导性有限。在中国尚未形成关于社团罚(包括公司内部处罚权)的完备体系,有关社团罚之性质、权源基础、设定依据及司法审查等等,均需参考德国法予以完善。
[Abstract]:In the Ansheng case, the court held that the articles of association could stipulate the penalty rights of the shareholders' meeting, but should make clear its standard and range, otherwise the punishment resolution made by the shareholders' meeting was invalid. The penalty power of shareholders' meeting can be interpreted from many angles-the company, as a kind of private law organization, has the right to set punishment, which may be embodied in the "internal autonomy discretion" (community punishment) of private law organization, or as "form of liability in private law" (contract penalty). In the case of incomplete setting of punishment power in shareholders' meeting, The presumptive technology can also be used to enable it to be implemented. Therefore, in the Ansheng case, the court's judgment on the punishment power of the shareholders' meeting is correct, but the judgment on its concrete application / implementation is too simple. In this regard, the Ansheng case, as the Supreme people's Court bulletin case, its guidance is limited. In China, a complete system of community punishment (including the power of punishment within the company) has not yet been formed, and the nature, source of power, setting basis and judicial review of the punishment of associations need to be improved with reference to German law.
【作者单位】：北京大学法学院;
【分类号】：D922.291.91

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