新公司法股东失权制度研究

A Study on the System of Shareholder Disenfranchisement under the New Company Law

摘要: 股东失权制度是新公司法的一项新制度安排，其具体内容是在股东未按期足额缴纳公司章程规定的出资时，由董事会做出失权决议，使该股东丧失其未缴纳出资的股权，其旨在保障已出资股东权益。实践中，中外合资企业根据股东出资比例提名对应数量的董事，这就导致在双方出资比例相当时，若一方未按期缴纳出资，已出资的股东可能无法在董事会中获得过半数的表决以通过股东失权决议。旧公司法下，公司可以尝试通过股东会决议做出失权通知，而公司法对于股东会的表决方式规定较为宽松，实践中公司可以先行减去未出资股东未出资部分的股权比例，再召开股东会，以解决上述僵局。随着《中华人民共和国公司法》(2023年修订，以下简称“新公司法”)的正式生效，在中外合资企业合资合同和章程修订过程中，董事会取代股东会做出失权决议，而新公司法规定董事会应当一人一票，且决议应获得半数以上同意，这就可能导致上述股东失权制度中的表决僵局问题无法依照旧公司法下的传统路径解决。本文旨在通过对新旧公司法条文的解读，为这一问题提供解决方案，以维护公司资本充实，保障公司正常发展。

Abstract: The shareholder disqualification system is a new institutional arrangement in the new Company Law. Its specific content is that when a shareholder fails to pay the capital contribution stipulated in the articles of association on time and in full, the board of directors makes a disqualification resolution, causing the shareholder to lose the equity corresponding to the unpaid capital contribution. The purpose of this system is to protect the rights and interests of shareholders who have made capital contributions. In practice, in Sino-foreign joint ventures, directors are nominated based on the proportion of shareholders’ capital contributions. This leads to a situation where, when the capital contribution ratios of both parties are similar, if one party fails to pay the capital contribution on time, the shareholders who have made capital contributions may not be able to obtain a majority of the votes in the board of directors to pass the disqualification resolution. Under the old Company Law, the company could attempt to make a disqualification notice through a shareholders’ meeting resolution. The Company Law has relatively loose regulations on the voting method of shareholders’ meetings. In practice, the company could first subtract the equity ratio corresponding to the unpaid capital contribution of the shareholder who failed to pay on time, and then hold a shareholders’ meeting to solve the above deadlock. With the official entry into force of the Company Law of the People’s Republic of China (revised in 2023, hereinafter referred to as the “new Company Law”), in the process of revising the joint venture contract and articles of association of Sino-foreign joint ventures, the board of directors replaces the shareholders’ meeting to make the disqualification resolution. However, the new Company Law stipulates that the board of directors should have one vote per person, and the resolution should be approved by more than half of the votes. This may lead to the problem of voting deadlock in the shareholder disqualification system being unable to be solved through the traditional path under the old Company Law. This article aims to provide solutions to this problem through the interpretation of the provisions of the new and old Company Laws, in order to maintain the company’s capital adequacy and ensure the normal development of the company.