有限责任:简要的历史回顾和基本原理分析
Corporate Law: Corporate & Financial Law: Interdisciplinary Approaches eJournal
Pub Date : 2020-10-20
DOI:10.2139/ssrn.3834225
引用次数: 0
摘要
今天，有限责任原则已经变得如此广泛，乍一看是如此明显的现象，甚至连没有任何法律学位的人都能解释它是关于什么的，有时甚至对它的合理性产生争议。1911年，哥伦比亚大学校长尼古拉斯·默里·巴特勒在纽约州商会的第三十届年度宴会上说:“……即使是蒸汽和电力也远不如有限责任公司重要，如果没有有限责任公司，它们就会变得相对无能为力。但这种现象真的如此明显和不可动摇吗?从事商业活动的人们希望将自己的风险或至少部分风险转移给他人，这种愿望是完全可以理解的，而且这种愿望自商业本身以来就一直存在。很难说何时何地通过限制责任将风险外部化的想法最初成为一种规则，但众所周知，在罗马，这种想法已经以特殊规定的形式实施了。几个世纪以来直到今天，限制责任的概念仍然适用于全球的商业企业。今天，学者们对有限责任原则仍然没有什么共识，尽管我们也有一些常用的论据来证明有限责任的正当性。与此同时，与有限责任有关的外部性有时是过度和不公平的，特别是对非自愿债权人来说，这是一个重大问题。在本文的第一部分，我们将简要地追溯有限责任原则从古至今的演变。在第二部分，我们将研究证明有限责任的基本原理。本文的目的是寻找与有限责任相关的外部性的合理限度。责任制度必须保留对公司股票投资的激励，但不能像今天这样对非自愿债权人过度和不公平。本文章由计算机程序翻译，如有差异，请以英文原文为准。
Limited Liability: Brief Historical Review and Analysis of Rationales
Today the doctrine of limited liability has become so proliferated and at first glance such a self-evident phenomenon, that often even people without any law degree, can explain what it is about, and sometimes even dispute over its rationality.
Columbia University President Nicholas Murray Butler at CXLIII Annual Banquet of the Chamber of Commerce of the State of New York in 1911 that ‘...even steam and electricity are far less important than the limited liability corporation, and they would be reduced to comparative impotence without it’ 1 claim became axiomatic and were repeatedly quoted. But is this phenomenon really so obvious and unshakable?The desire of people engaged in business activity to shift their risks or at least part of it to others is fully understandable, and exists for as long as commerce itself.
It’s hard to say where and when the idea of risks externalization through limiting liability initially became a rule, but its known that in Rome this idea was already implemented in the form of peculium.
Through centuries up to nowadays the idea of limiting liability remains relevant for the business enterprises all around the globe.
Today scholars still have little consensus over limited liability doctrine, although we also have a number of arguments that are commonly used for justification of limited liability.
At the same time externalities associated with limited liability sometimes are excessive and unfair, especially for involuntary creditors, which is a significant problem.
In the first part of this article we will briefly trace the evolution of limited liability doctrine from antiquity till present day.
In the second part we will examine the rationales that justify limited liability. The goal of this paper is to find rational limits of externalities associated with limited liability. The liability regime must save incentives for investment in corporate stock but not to be excessive and unfair towards involuntary creditors, as it is today.
Columbia University President Nicholas Murray Butler at CXLIII Annual Banquet of the Chamber of Commerce of the State of New York in 1911 that ‘...even steam and electricity are far less important than the limited liability corporation, and they would be reduced to comparative impotence without it’ 1 claim became axiomatic and were repeatedly quoted. But is this phenomenon really so obvious and unshakable?The desire of people engaged in business activity to shift their risks or at least part of it to others is fully understandable, and exists for as long as commerce itself.
It’s hard to say where and when the idea of risks externalization through limiting liability initially became a rule, but its known that in Rome this idea was already implemented in the form of peculium.
Through centuries up to nowadays the idea of limiting liability remains relevant for the business enterprises all around the globe.
Today scholars still have little consensus over limited liability doctrine, although we also have a number of arguments that are commonly used for justification of limited liability.
At the same time externalities associated with limited liability sometimes are excessive and unfair, especially for involuntary creditors, which is a significant problem.
In the first part of this article we will briefly trace the evolution of limited liability doctrine from antiquity till present day.
In the second part we will examine the rationales that justify limited liability. The goal of this paper is to find rational limits of externalities associated with limited liability. The liability regime must save incentives for investment in corporate stock but not to be excessive and unfair towards involuntary creditors, as it is today.
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