债权人对有限公司债务人财务账册查阅权的建构

The Construction of the Creditor's Right to Inspect the Financial Books of the Debtor of the Limited Company

  • 摘要: 商事背景下的债权权益保护具有特殊性,应从《公司法》中探求债权人查阅权的具体举措。债权人查阅权具有缓解公司与债权人之间信息偏差、降低债权人遭受公司股东及实控人不法侵害、促进公司治理合法合规等多重功能。但是,我国立法并未赋予债权人完善的查阅权,导致以公司为债务人的债权人权益难以得到有效保障。现阶段,关于债权人查阅权制度的研究成果甚少,也欠缺对债权人查阅权的系统性、宏观性梳理。鉴于公司资产是债权实现的基础,公司财务账册是公司资产信息的重要载体。因此,对公司债务人财务账册的查阅才是债权人行使查阅权的核心。小额债权人主动知悉公司债务人财务信息的能力较弱,对查阅权的依赖更强,应当作为查阅权的核心主体。同时,《公司法》视域下的债权人保护不应当以牺牲公司债务人合法权益为代价,应当以正当目的和保密义务为查阅权行使的限制性条件。具体在行权条件、行权方式、举证责任、辅助人协助查阅方面勾勒债权人行权程序的整体轮廓。

     

    Abstract: The protection of creditor's rights and interests under the commercial background is unique, and the specific measures of creditor's inspection rights should be explored from the perspective of "Company Law." The creditor's right of inspection has multiple functions, such as alleviating the information asymmetry between the company and the creditor, reducing illegal infringement by the company's shareholders and actual controllers against creditors, and promoting legal compliance of corporate governance. However, China's legislation does not provide creditors with a comprehensive right of inspection, which makes it difficult to effectively protect the rights and interests of creditors when the company serves as the debtor. At present, there are few research results on the creditor's right of inspection system, and there is also a lack of systematic and comprehensive analysis of the creditor's right of inspection. In view of the fact that the company's assets are the basis for the realization of creditor's rights, the company's financial accounts are an important carrier of the company's asset information. Therefore, the inspection of the company debtor's financial books is the core of the creditor's exercise of the right of inspection. Small creditors have a weak ability to actively obtain the financial information of the company debtors and are more dependent on the right of inspection. They should be the core subjects of the right of inspection. At the same time, the protection of creditors from the perspective of "Company Law" should not be at the expense of the legitimate rights and interests of corporate debtors, and should be based on legitimate purposes and confidentiality obligations as restrictive conditions for the exercise of the right of inspection. Specifically, it outlines the overall framework of the creditor's exercise procedure in terms of exercise conditions, exercise methods, burden of proof, and auxiliary assistance.

     

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