Corporate social responsibility is a hot issue concerned by governments, business circles, academia and all walks of life. The Sixth Plenary Session of the 16th CPC Central Committee decided to "focus on enhancing the social responsibility of citizens, enterprises and various organizations". Therefore, strengthening corporate social responsibility is not only an important content of company law, but also an important content of building a harmonious society.
The so-called corporatesocialresponsibility means that a company can't just take making money for shareholders as its sole purpose, but should care and promote all other social interests except shareholders' interests to the maximum extent, including the interests of consumers, employees, creditors, small and medium-sized competitors, local communities, the environment, the weak in society and the whole society, including natural persons, especially the human rights of society. Although there are differences between the theory of corporate social responsibility and the theory of stakeholder-non-shareholder organization, their core contents are the same, and they all show social concern beyond the profitability of the company. The core values of corporate social responsibility are people-oriented, not money-oriented. Corporate social responsibility is not only a corporate governance concept, but also an institutional arrangement and business practice. Without the concept of corporate social responsibility, there is no mature system design; Without the conscious practice of corporate social responsibility, the theory of corporate social responsibility will become passive water. And the system design plays a connecting role.
Conceptually, corporate social responsibility is a view of capital and wealth. Corporate social responsibility emphasizes the sociality and ethics of capital, and emphasizes that capital has ethics and business has morality. Companies should not only acquire sunshine wealth, but also make good use of it. Not only the process of acquiring wealth should meet the requirements of law and business ethics, but also the process of using and disposing wealth should meet the requirements of law and business ethics. Corporate social responsibility is a complete denial of the extreme theory of immoral capital and immoral business.
As far as system design is concerned, the fulfillment of corporate social responsibility can not be separated from the perfect design of legal system and ethical system. For example, the government should encourage enterprises to take social responsibility through government procurement and simplifying administrative procedures; Legislators should encourage investors, especially institutional investors, to invest in corporate social responsibility.
As far as business practice is concerned, companies should consciously introduce social responsibility policies that are beneficial to workers, consumers, environmental interests and social interests. The highest level of corporate social responsibility movement is not to force enterprises to assume social responsibility through the strong pressure of law and external public opinion, but to help the concept of corporate social responsibility take root deeply in the hearts of corporate investors and their operators and turn it into a voluntary corporate social responsibility movement at any time.
Corporate social responsibility has both substantive and procedural significance. As a procedural concept, corporate social responsibility requires that corporate decision-making procedures consider and reflect social interests and social rights. For example, the employee supervisor system in Germany allows employee representatives to participate in the company's decision-making procedures (such as appointing and removing directors, determining directors' remuneration and other major decisions) and supervision activities by serving as supervisors. As a substantive concept, corporate social responsibility requires that the results of corporate decision-making can be responsible for social interests and social rights. For example, the state legislation in the United States that adopts the theory of corporate stakeholders allows the board of directors of companies to take anti-takeover measures in order to enhance the legitimate rights and interests of stakeholders, rather than sticking to the thinking mode of maximizing shareholders' interests when making anti-takeover decisions.
Second, social responsibility in legal sense and ethical sense should be subordinated to the normative source of corporate social responsibility, which can be divided into legal social responsibility (such as timely and full performance of debts, paying taxes, paying workers' wages and protecting the environment) and ethical social responsibility. The fulfillment of corporate social responsibility in the legal sense mainly depends on the legal responsibility investigation mechanism, and legal responsibility is backed by powerful state public power. It can be seen that corporate social responsibility in the legal sense is a rigid social obligation. In the legal sense, the provisions on strengthening corporate social responsibility are scattered throughout the legal system. Legislators don't need or have enough wisdom to make an all-encompassing corporate social responsibility law. But as the bottom line, the company must fulfill its social obligations at the legal level, such as the social obligations stipulated in the Labor Law, the Consumer Protection Law, the Product Quality Law, the Tax Law and the Environmental Protection Law.
In recent years, the business and legal circles have basically established the concept of market economy rule of law of company autonomy and freedom of contract, but they have not paid enough attention to business ethics, the principle of good faith and the principle of public order and good customs. In view of this, the theory of corporate social responsibility requires companies not only to abide by the mandatory norms and advocacy norms in laws and administrative regulations, but also to consciously abide by the moral norms and the principles of public order and good customs in business ethics. In the "overpopulation" incident in a certain place in Yunnan reported by the media in 2003, the so-called Japanese catering mode adopted by merchants was suspected of poisoning the consumption environment, polluting the business environment and undermining public order and good customs. Of course, it is not the ultimate goal of the company to abide by laws, administrative regulations and business ethics and safeguard public interests and good social customs. The ultimate goal is to fulfill social responsibilities to employees, consumers, creditors and other stakeholders.
If the social responsibility set by law for the company is limited, then the social responsibility set by ethics for the company is infinite. A smart company should not only be a model of law-abiding operation, but also be an honest and upright Confucian businessman. The fulfillment of corporate social responsibility in the moral sense mainly depends on return, conscience, public opinion and market. It can be seen that corporate social responsibility in the ethical sense is an elastic social obligation. However, companies that lack business ethics and are dishonest and trustworthy, even legitimate companies, will be spurned by the market. Forward-looking and promising companies should strive for Excellence and strive to become noble companies and Confucian businessmen with outstanding reputation, which are trusted and respected by workers, consumers and the public. It is suggested that enterprises in China should put pressure on themselves and consciously introduce a code of corporate social responsibility that is higher than legal standards and has unique corporate culture characteristics. Fortunately, in 2005, State Grid Corporation of China took the lead in publishing the corporate social responsibility report, which produced a good social effect in leading the practice of corporate social responsibility. Industry associations should also formulate corporate social responsibility codes suitable for the specific situation of the industry. It is suggested that students majoring in business administration in colleges and universities set up business ethics and corporate social responsibility courses as compulsory courses for business administration majors.
Of course, companies should assume social responsibilities and make appropriate commitments according to their own abilities. There is an implicit premise for a company to undertake social responsibility: the company has the ability to undertake social responsibility. If the company is paralyzed and bankrupt, it will be unable to bear social responsibility. Therefore, the commitment and standards of corporate social responsibility should be determined in order to seek a win-win situation for the interests of the company, shareholders and non-shareholders, and to control the burden of corporate social responsibility within the scope of the company's sustainable development.
Third, the attitude towards the new company law in China.
The new company law not only pursues the maximization of shareholder value, but also strengthens the social responsibility of the company.
In order to embody the people-oriented Scientific Outlook on Development, Article 5 of the new Company Law clearly requires that "companies engaged in business activities must abide by laws and administrative regulations, abide by social ethics and business ethics, be honest and trustworthy, accept the supervision of the government and the public, and assume social responsibilities". This is a major feature of China's socialist company law and a great contribution of China legislators to the world company law. Although there are many provisions in the company laws of American States to protect and enhance the interests of other stakeholders other than shareholders, most of them are limited to authorizing or requiring the board of directors to take necessary defensive measures for the interests of non-shareholders when the board of directors of the company is threatened by hostile takeover. Although there is an employee supervisor system in Germany's * * * same decision law and other related laws, the general provisions of the Company Law and the Limited Liability Company Law do not emphasize the general provisions of corporate social responsibility.
The new company law not only contains the idea of strengthening corporate social responsibility in the general provisions, but also designs a set of specific systems to comprehensively strengthen corporate social responsibility in the specific provisions. For example, the new company law has further improved the employee director system and employee supervisor system. As far as the employee supervisor system is concerned, Article 52, paragraph 2, Article 7 1 and Article18 of the new Company Law require that the board of supervisors should include shareholders' representatives and employees' representatives in an appropriate proportion, among which the proportion of employees' representatives should not be less than one third, which is helpful to reverse the phenomenon that the proportion of employees' supervisors in some companies is too low. As far as the employee director system is concerned, Article 45, paragraph 2, and Article 68 of the new Company Law require that the board members of limited liability companies and wholly state-owned companies invested by two or more state-owned enterprises or other state-owned investors should include employees' representatives; Paragraph 2 of article 45 and paragraph 2 of article 109 allow other limited liability companies and joint stock limited companies to establish employee representative directors system.
In view of the fact that corporate restructuring often leads to laid-off workers, drawing on the legislative experience of the European Union, especially the directive of the European Commission on the protection of workers' rights and interests in the whole or partial transfer of enterprises or businesses, the third paragraph of Article 18 of the new Company Law stipulates: "When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade unions, and listen to the opinions of workers through the workers' congress or other forms. Although article 143 of the new Company Law prohibits the company from buying back its shares in principle, it allows the company to buy back shares not exceeding 5% of the total issued shares to reward its employees. At the same time, it is stipulated that the funds used for acquisition shall be paid from the after-tax profits of the company, and the acquired shares shall be transferred to the employees within one year.
Paragraph 2 of Article 187 of the new Company Law requires the company to pay social insurance premiums and statutory compensation in addition to employees' wages before paying the taxes owed. The second paragraph of Article 195 of the old Company Law did not stipulate that "statutory compensation" can be paid in priority except "labor insurance expenses".
It should be pointed out that the social responsibility clause stipulated in Article 5 of the new Company Law embodies the basic idea that legislators attach importance to corporate social responsibility, so it is positioned in the general provisions of the Company Law. Corporate social responsibility clause is not only a mandatory and advocacy legal provision, but also of great practical significance for guiding the specific provisions of the company law, guiding judges and lawyers to interpret the company law, and guiding shareholders and other legal parties of the company to make investment and decision-making activities. When applying and explaining the new company law in the establishment, governance, operation, reorganization and bankruptcy of a company, we should always carry forward the spirit of corporate social responsibility.
For example, the corporate social responsibility clause authorizes the board of directors to consider and promote the interests of employees, consumers and other stakeholders when making decisions (including formulating anti-takeover measures). For another example, according to the legislative concept of corporate social responsibility, the principle of corporate maintenance should be fully respected. In the proceedings of company dissolution, bankruptcy and invalid company establishment, the court should try its best to safeguard the vitality of the company. When exercising discretion, a judge will not dissolve a company that can or cannot be dissolved; Firmly bankrupt and reorganize companies that can be liquidated or reorganized; For companies that can be confirmed invalid or can take defect remedial measures to confirm the effectiveness of the company, resolutely take defect remedial measures. In addition, in order to implement social policies such as expanding employment and protecting the environment, large companies should be encouraged to give priority to purchasing goods or services from small and medium-sized enterprises and environment-friendly enterprises.
Fourth, strengthen the theoretical basis of corporate social responsibility.
(1) Sociality of the company.
The theoretical basis of strengthening corporate social responsibility lies in the sociality of the company. As a profit-seeking tool for investors, the company is of course profitable. But the company, as a social organization, is more social. Some western traditional economists presuppose that everyone is an economic man who pursues the maximization of personal interests, and then infer the corresponding solutions to economic problems. In fact, natural persons are both animals and society. Similarly, the profitability of a company is like the nature of a natural person. While paying attention to the profitability of the self-taught company, we must strengthen the sociality of the company and realize that the company is only a member of society. The company is both an economic person and a social person. A respected company must be a company that gives consideration to both profitability and sociality. Only paying attention to the profitability of the company, not paying attention to the sociality of the company, can only become a rich but not expensive company.
For many companies, the pursuit of profit maximization seems to be a self-taught code of conduct. However, one-sided emphasis on the profitability of the company has caused many social problems, such as deceiving consumers, polluting the environment, abusing workers, hurting creditors, and the overall decline of corporate integrity and social credibility. As we all know, companies are both profitable and social. Since the company is social, it is impossible to reduce the interests of the company only to the interests of shareholders; On the contrary, the company should be responsible for its employees, creditors, suppliers, consumers, residents where the company is located, natural environment and resources, national security and all-round social development. The interests of shareholders and other stakeholders are contradictory and dialectical unity on the basis of the interests of the company. Once the company goes bankrupt due to poor management, it will hurt not only shareholders, but also a large number of stakeholders, including workers and creditors. The interest relationship between shareholders and other stakeholders determines that reasonable restrictions on shareholders' interests and care for other stakeholders are the legal premise to protect shareholders' interests.
(2) The economic strength of the company.
The great research conclusion of 10 published by two American researchers, Anderson and kavanagh, shows that among the top global 100 economies, 5 1 is a company and only 49 are countries. Among them, Toyota in Japan is stronger than Norway, and General Motors is stronger than Denmark. More importantly, the concentration of corporate economic power has further deepened the inequality between beneficiaries and non-beneficiaries in the company's expansion activities.
The nature of rights, powers, obligations and responsibilities means that social obligations are included in almost all legal rights, legal powers or actual forces. The socialization of ownership has become one of the core features of contemporary property law and property law. From the French Civil Code 1804 to the German Civil Code 1896 and then to the General Principles of the Civil Law of China 1986, we can find that social obligations or social responsibilities are increasingly infiltrating into the internationalization trend of private ownership and private law autonomy under the principle of honesty, credit, fairness and justice.
The social obligations contained in civil rights are directly proportional to their actual influence in society. From the common sense, no matter who, the greater its economic strength and social influence, the heavier its social responsibility and social obligation; Conversely, companies from Dallas to the auditorium cannot exist in a social vacuum. Since companies draw nutrition from society and earn profits, they should shoulder the heavy responsibility of solving social problems, respecting and promoting social laws and policies. The stronger the company's economic strength, the heavier and wider its social obligations should be. Corporate social responsibility should be closely related to the scale of corporate power.
To build a harmonious society and enhance the overall and long-term interests of society depends not only on the administrative intervention of the government, but also on the conscious actions of market players. We should not only pay attention to the role of paid government intervention, but also pay attention to the role of micro-corporate social responsibility system.
(3) the company's competitive strategy.
Strengthening corporate social responsibility not only grasps the bull's nose in building a harmonious society, but also helps to enhance the company's core competitiveness. In the situation that many industries are welcoming the era of low profit, the competition of companies in the future is no longer the competition of new technologies, new products and talents, but the competition of socially responsible brands. Consciously assuming social responsibility is the business strategy of smart companies to occupy market share. Specifically, it has the following advantages:
(1) is helpful to enhance the company's integrity, improve the company's image, prevent the crisis of citizen relations and avoid the chain reaction of integrity. Some companies and their shareholders are insensitive to the public interest, rich but not expensive, and cannot gain the heartfelt respect of the public. Only a successful company that consciously assumes social responsibility can grow into a respected company.
(2) It helps to reduce the production and operation costs of the company. For example, after the company adopts the concept of circular economy, it will not only help to protect the environmental quality of the whole society, but also help to reduce the company's operating costs. For another example, the policy of hiring employees for a long time helps to cultivate employees' permanent loyalty.
(3) It helps to reduce the financing cost of the company. Investors always like to invest in companies that operate in good faith. It is difficult for a company that is dishonest to its stakeholders to maintain its integrity to investors.
(4) It is helpful to attract consumers who agree with the concept of corporate social responsibility. In recent years, there have also been some negative cases in China, in which the company lost the market despite winning the judgment in the consumer lawsuit. Because, for whatever reason, consumers are unlikely to be loyal to this business because they are defeated by it. Because consumers can vote with money or with their feet.
(5) It helps to maximize the long-term interests of the company. Corporate social responsibility may give up short-term and local interests, but it will help maximize long-term interests.
Professor Curtis. Verschoor of Depaul University published a paper in Strategic Finance on June 5438+1October, 2002, and thought that the overall operating performance of 200 1 Business Ethics Company was significantly better than that of the Standard & Poor's 500 Index. Among them, "business ethics" is mainly aimed at seven kinds of corporate stakeholders, including shareholders, employees, customers, community, environment, overseas stakeholders and women. This research conclusion shows once again that it is not a loss for enterprises to take the initiative to assume social responsibility.
(D) People-oriented Scientific Outlook on Development.
The Decision of the Third Plenary Session of the 16th CPC Central Committee (hereinafter referred to as the Decision) emphasized that "a mechanism to promote the coordinated development of regional economy should be formed according to the requirements of coordinating urban and rural development, coordinating regional development, coordinating economic and social development, and coordinating the harmonious development between man and nature; Improve the employment, income distribution and social security system; Establish a mechanism to promote sustainable economic and social development. " The "Decision" requires "overall consideration and coordination of various interests in the process of reform. Adhere to people-oriented, establish a comprehensive, coordinated and sustainable development concept, and promote the all-round development of economy, society and people. " When talking about social law, the "Decision" particularly emphasizes "improving labor, employment and social security laws and regulations, and effectively protecting the legitimate rights and interests of workers and citizens. Improve laws and regulations in the social field and sustainable development, and promote economic development and all-round social progress. "
To implement people-oriented Scientific Outlook on Development and fully embody the superiority of the socialist system, we must reverse the legislative thinking of unilaterally pursuing the maximization of corporate profits and GDP in the past, and further emphasize the values of social interests, social equity, social justice, social stability and social harmony of the company law system. If the historical mission of company law is only to seek short-term economic growth and economic benefits of enterprises, at the expense of social stability, destruction of environment and natural resources, acceleration of polarization and creation of social contradictions, it will run counter to Scientific Outlook on Development. Therefore, the company law must transform the people-oriented Scientific Outlook on Development into concrete legal norms, and build a legal system that fully protects the rights and interests of workers, consumers, the environment, social vulnerable groups and the public, so as to promote the harmonious, comprehensive and sustainable development of the company and society. From a macro perspective, strengthening corporate social responsibility is an important part of building a harmonious society.
(5) Social obligation to promote the realization of social rights.
Corporate social responsibility is closely related to social rights in human rights, especially the rights of consumers and workers. The highest value to be defended by corporate social responsibility and social rights is the same. As a highly concentrated concept, social rights refer to various economic, social and cultural rights that embody social justice and belong to the category of human rights and basic freedoms. The "economic, social and cultural rights" mentioned here are very extensive. It includes not only 65,438+00 rights listed in the Economic, Social and Cultural Covenant, but also other rights with the characteristics of economic and social rights, such as the right to eat, the right to consumers, the right to environment and the right to development. The power of a political country is great, but its ability is limited after all. It is not enough to unilaterally emphasize the positive obligation of the state to realize social rights. Faced with the crisis in the welfare state, some western countries have cut social welfare budget expenditure, which can prove this point. The invention of the welfare state has brought good news to the realization of social rights, but the social rights that the welfare state can guarantee are extremely limited, generally limited to social security rights (including the right to receive unemployment benefits), but unable to protect citizens' environmental rights, work rights and consumer rights. However, the company has great potential in promoting the realization of many social rights, such as protecting citizens' environmental rights, labor rights, consumer rights and workers' right to participate in company management, and fundamentally solving social problems such as unemployment and environmental protection. In the 2 1 century, strengthening corporate social responsibility and promoting the progress of social rights should be put on the agenda of human rights and business circles. Of course, it is a severe challenge for human rights and business circles to link corporate social responsibility with social rights as human rights.