摘要： 近年来,科创型“独角兽”公司太大而难以治理现象再次诘问传统公司理论。风险投资不再拘泥于优先股的单一融资功能,而是将治理要素融入其中,导致传统股东压迫(封闭公司)和委托代理(公众公司)理论模型与“独角兽”商业实践相抵牾。在公司类型多元化改革背景下,应以股东、董事异质化假设为前提,建构起适用于封闭科创型公司治理的新二元分析范式。由是,可能改进方向为:于信义义务层面,《公司法》修改需同时完善行为标准和审查标准规则;于治理结构层面,通过章程设计兼具决策、监督和调解功能的董事会,走向“修正的董事会中心主义”。

关键词: 封闭科创型公司, 公司治理, 优先股, 信义义务

Abstract: In recent years, the Unicorn Company phenomenon, which is too big to govern, has again impacted the traditional corporate governance theory.As venture capitalists are no longer satisfied with the financing function of preference shares and further pursue its governance function, which has led to a contradiction between traditional theoretical models of shareholder oppression (closed companies) and principal-agent (public companies) and the business practices of unicorns.In reforming the diversity of company types, a new binary analysis paradigm should be constructed for the governance of Startups based on the assumption of heterogeneity of shareholders and directors.In this regard, the possible directions of improvement are: in terms of fiduciary duty rules, the Company Law should be amended to improve both Standard of conduct and Standard of review; in terms of governance structure rules, a revisionist director primacy should be achieved through the design of a board of directors with decision-making, supervisory and mediation functions in the charter.

Key words: Startup, Corporate Governance, Preferred Stock, Fiduciary Duties