Corporate social responsibility is a hot issue of great concern to governments, enterprises, academics and all walks of life. The Decision of the Sixth Plenary Session of the Sixteenth Central Committee pointed out that it is necessary to "focus on enhancing the social responsibility of citizens, enterprises and various organizations". Therefore, the strengthening of corporate social responsibility is not only an important part of the company law, but also an important part of building a harmonious society.
The so-called corporate social responsibility (corporatesocialresponsibility), means that the company can not only maximize the shareholders to make money as their only purpose of existence, should maximize the care and promotion of the interests of shareholders in addition to the interests of all other social interests, including the interests of consumers, employees, creditors, small and medium-sized competitors, the interests of the local community, the interest of the company, the interests of the community, the interest of the company's shareholders, and the interests of the company's shareholders. It includes the interests of consumers, employees, creditors, small and medium-sized competitors, local communities, the environment, the weak in society, and the public interest of society as a whole, including the human rights of natural persons, especially the social rights, as well as the rights and interests of legal persons and unincorporated organizations. The theory of corporate social responsibility and stakeholder (stakeholderornon-shareholderconstituencies) theory expression is different, but its core content is the same, are reflected on the company's profitability outside the social concerns. The core value of CSR is people-oriented rather than money-oriented. CSR is not only a corporate governance concept, but also an institutional arrangement and a business practice. Without the concept of CSR, there will be no mature institutional design; without conscious practice of CSR, the theory of CSR will become water without source. And the system design plays the role of the carrier.
As far as the concept is concerned, CSR is a kind of capital and wealth concept. CSR emphasizes the social and ethical nature of capital, stressing that capital has ethics and business has morality. The company should not only obtain sunshine wealth, but also make good use of sunshine wealth. Not only the process of acquiring wealth should comply with the requirements of law and business ethics, but also the process of using and disposing wealth should comply with the requirements of law and business ethics. Corporate social responsibility is a complete rejection of the extreme theory that capital has no ethics and business has no morals.
As far as system design is concerned, the implementation of corporate social responsibility cannot be separated from the perfect design of the legal and ethical systems to promote and eliminate evils. For example, the government should encourage corporate social responsibility through government procurement and simplified 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 benefit workers, consumers, environmental interests and social **** interests. The highest level of corporate social responsibility movement is not to force companies to undertake social responsibility through the strong pressure of law and external public opinion, but to help the concept of corporate social responsibility to be y rooted in the hearts and minds of company investors and their operators, and at any time to be transformed into a conscious and voluntary corporate social responsibility movement.
Corporate social responsibility has both substantive and procedural meanings. As a procedural concept, CSR requires that the decision-making process of a company take into account and reflect social interests and social rights. For example, Germany's employee supervisory system allows employee representatives to participate in the company's decision-making process (e.g., appointing and removing directors, determining directors' compensation, and other major decisions) and supervisory activities by serving as supervisors. As a substantive concept, corporate social responsibility (CSR) requires that the results of corporate decisions be accountable to social interests and rights. For example, state legislation in the United States, which adopts the stakeholder theory of the company, allows the board of directors of a company to take anti-takeover measures to promote the legitimate rights and interests of stakeholders, instead of adhering to the mindset of maximizing the interests of shareholders when making anti-takeover decisions.
Two, the legal sense of social responsibility and ethical sense of social responsibility according to the normative source of corporate social responsibility, corporate social responsibility can be divided into the legal sense of social responsibility (such as timely and full fulfillment of debts, tax, pay wages to workers, protect the environment) and ethical sense of social responsibility. The implementation of the legal sense of the company's social responsibility mainly depends on the legal accountability mechanism, and the legal responsibility is backed by the strong national public power. It can be seen that the legal sense of corporate social responsibility is a rigid social obligation. Provisions to strengthen corporate social responsibility in the legal sense are scattered throughout the legal system. Legislators do not need, nor are they wise enough to enact an all-encompassing Corporate Social Responsibility Law. But as a bottom line, companies must fulfill their social obligations at the legal level, such as those set out in labor laws, consumer protection laws, product quality laws, tax laws and environmental protection laws.
In recent years, the corporate sector and the legal profession have basically established the concept of the rule of law in the market economy, which is based on corporate autonomy and freedom of contract, while paying insufficient attention to business ethics, the principle of honesty and trust, and the principle of public order and morality. In view of this, the theory of corporate social responsibility requires companies to carry out business activities not only to comply with laws and administrative regulations in the mandatory norms and advocacy norms, but also to consciously comply with business ethics in the moral norms, consciously abide by the principle of public order and morality. In 2003, the media reported a place in Yunnan, "human body Sheng" incident, businessmen to take the so-called Japanese-style dining model has poisoned the consumer environment, pollution of the business environment, damage to public order and morals of the suspicion. Of course, the company to comply with laws, administrative regulations and business ethics, to protect the interests of the public **** and good social customs is not the ultimate goal in itself, the ultimate goal is to fulfill the social responsibility to workers, consumers, creditors and other stakeholders.
If the social responsibility set by the law for the company is limited, the social responsibility set by the ethics for the company is unlimited. A smart company should not only become a model of law-abiding business, but also become an honest and generous Confucian businessman. The implementation of ethical corporate social responsibility mainly depends on rewards, conscience, public opinion and the market. It can be seen that CSR in the ethical sense is a flexible social obligation. However, a company that lacks business ethics and is not honest and trustworthy will be rejected by the market even if it is considered a legitimate company. Companies with vision and potential should strive for excellence and become noble companies and Confucian businessmen with outstanding reputation, trusted and respected by workers, consumers and the public. It is suggested that our companies should pressurize themselves and consciously launch the Code of Corporate Social Responsibility, which is higher than the legal standard and unique in corporate culture. Happily, the State Grid Corporation took the lead in releasing its CSR report in 2005, which has produced good social effects in leading the practice of CSR. Industry associations should also formulate tailor-made CSR codes for their own industries. It is recommended that business ethics and corporate social responsibility courses be offered to business administration majors in colleges and universities as mandatory courses for business administration majors.
Of course, a company's commitment to social responsibility should be within its means and moderate. There is an implicit premise that a company is capable of assuming social responsibility. If a company is paralyzed or bankrupt, it will not be able to assume social responsibility. Therefore, the commitment of corporate social responsibility and the determination of standards should be located in the pursuit of corporate interests, shareholders' interests and non-shareholders' interests of the win-win situation, to control the burden of corporate social responsibility within the scope of the company's sustainable development.
Third, China's new Company Law attitude
The new Company Law in the pursuit of shareholder value maximization, while strengthening the company's social responsibility.
In order to reflect the people-oriented scientific concept of development, the new Company Law, Article 5 of the flagrant requirements, "the company engaged in business activities, must comply with the laws and administrative regulations, abide by social morality, business ethics, honesty and trustworthiness, accept the government and the public supervision, social responsibility". This is a major feature of China's socialist company law, but also China's lawmakers to the world's major contribution to company law. Although the U.S. states have many provisions to protect and promote the interests of stakeholders other than shareholders, but mostly limited to the company's board of directors faced with the threat of hostile takeover, authorized or required the board of directors for the benefit of non-shareholder stakeholders to take the necessary defensive measures. Although Germany has a system of employee supervisors in relevant laws such as the ****Determination Act, it lacks general provisions emphasizing corporate social responsibility in the general provisions of its Stock Act and Limited Liability Companies Act.
The new Company Law not only includes the concept of strengthening corporate social responsibility in the General Provisions, but also designs a set of specific systems in the Sub-Provisions to fully strengthen corporate social responsibility. For example, the new Company Law further improves the employee director system and employee supervisor system. As far as the employee supervisory system is concerned, Articles 52(2), 71 and 118 of the new Company Law require that the supervisory board shall include representatives of shareholders and an appropriate proportion of employee representatives, of which not less than one-third shall be employee representatives, thus helping to reverse the phenomenon that the proportion of employee supervisors is too low in some companies. As far as the employee director system is concerned, Articles 45(2) and 68 of the new Company Law require employee representatives to be included in the board of directors of limited liability companies and wholly state-owned companies invested by two or more state-owned enterprises or two or more other state-owned investment entities, while Articles 45(2) and 109(2) allow other limited liability companies and joint-stock companies to set up an employee representative director system. system.
In view of the fact that company reorganization often results in layoffs of employees, drawing on the legislative experience of the European Union, in particular the 2001 European Commission Directive on the Protection of Employees' Rights and Interests in the Event of Total or Partial Transfer of an Undertaking or a Business, Article 18(3) of the new Company Law stipulates that "When a company studies and decides on reorganization or on any other major issue concerning its operation, or when it formulates any important regulations, it shall listen to the trade unions of the company". When a company studies and decides on restructuring, major issues in management, and formulates important rules and regulations, it shall listen to the opinions of the company's labor union, and shall also listen to the opinions and suggestions of the employees through the employees' congresses or other forms". Article 143 of the new Company Law prohibits a company from buying back its own shares in principle, but exceptionally permits a company to buy back not more than five percent of the total number of shares issued by the company in order to award shares to its employees; it also stipulates that the funds used for the acquisition shall be paid out of the company's after-tax profits and the acquired shares shall be transferred to the employees within one year.
In order to protect the employees in the case of dissolution of the company to obtain appropriate protection, the new Companies Act, Article 187, paragraph 2, requires the company to pay the outstanding taxes, in addition to the payment of wages, but also to pay social insurance costs and statutory compensation. On the other hand, Article 195 (2) of the old Company Law does not provide for the priority payment of "statutory compensation" except for the reference to "labor insurance expenses".
It should be pointed out that the social responsibility provisions in Article 5 of the new Company Law reflect the legislator's basic philosophy of emphasizing corporate social responsibility, and is therefore located in the General Provisions of the Company Law. The corporate social responsibility provisions are not only mandatory, advocacy of the legal provisions, but also for the unification of the provisions of the company law, guiding judges and lawyers to interpret the company law, guiding shareholders and other parties to the company's legal relations to carry out investment and decision-making activities of great practical significance. In the establishment of the company, governance, operation, reorganization, bankruptcy and other aspects of the application and interpretation of the new company law, should always carry forward the spirit of corporate social responsibility.
For example, the CSR provisions authorize the board of directors to take into account and promote the interests of employees, consumers and other stakeholders when making decisions (including the formulation of anti-takeover measures). Another example is that, according to the legislative concept of CSR, the principle of corporate maintenance should be fully respected. The court shall try to maintain the vitality of the company in corporate dissolution litigation, corporate bankruptcy litigation, and litigation for invalidating the establishment of the company. In exercising their discretionary power, judges are determined not to dissolve a company that may or may not be dissolved; they are determined to reorganize a company that may or may not be liquidated in bankruptcy; and they are determined to take remedies for defects in a company that may be recognized as invalid or may be validated by taking remedial measures for the defects. In addition, in order to implement the policy of expanding employment and protecting the environment, large companies should be encouraged to prioritize the procurement of goods or services from small and medium-sized enterprises and environmentally friendly enterprises.
Four, strengthen the theoretical basis of corporate social responsibility
(a) the social nature of the company.
The theoretical basis for strengthening corporate social responsibility lies in the social nature of the company. As a profit-seeking tool for investors, the company is of course profit-making. But as a kind of social organization, the company is more social. Some western traditional economists presuppose that all human beings are economicpersons pursuing the maximization of individual self-interest, and then reason out the solutions to the corresponding economic problems. In fact, natural human beings are both animal and social. Similarly, the profitability of a company is like the naturalness of a natural person. While focusing on the profitability of the company, we must strengthen the social nature of the company and realize that the company is only a member of the society. Corporations are both economic and social beings. A company that is respected is one that balances profitability and social aspects. A company that focuses only on its profitability and not on its social character will only be reduced to a company that is rich but not noble.
For many companies, the pursuit of profit maximization seems to be a self-taught code of conduct. However, one-sided emphasis on corporate profitability has given rise to many social problems, such as consumer fraud, environmental pollution, abuse of labor, the victimization of creditors, corporate integrity and social creditworthiness of the overall decline and so on. It is not known that the company has both profitability and social nature. Since the company has a social nature, the interests of the company cannot be reduced to the interests of the shareholders only; on the contrary, the company should assume certain responsibilities for its laborers, creditors, suppliers, consumers, the residents of the company's location, the natural environment and resources, national security and the overall development of society. The interests of shareholders and other stakeholders are not only opposed to each other, but also dialectically unified on the basis of the company's interests. Once a company is closed down and dissolved due to poor management, not only shareholders, but also a large number of interests, including laborers and creditors, will suffer. The interest relationship between shareholders and other subjects of interest determines that the reasonable constraints on the interests of shareholders and the care of other stakeholders is precisely the legal prerequisite for the protection of shareholders' interests.
(ii) the economic power of the company.
The two American researchers Anderson and Cavanagh published 10 great research conclusions show that, in the world's largest economy 100, 51 are companies, countries only 49. 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 inequalities between those who benefit from corporate expansion and those who do not.
The nature of rights, powers, duties and responsibilities means that social obligations are embedded in virtually all legal rights, legal powers or physical forces. The socialization of ownership has become one of the central features of contemporary property and estate law. From the evolution of the French Civil Code of 1804 to the German Civil Code of 1896 to the General Principles of the Civil Law of China of 1986, it can be found that the social obligation or social responsibility is increasingly penetrating the internationalization of private ownership and private law autonomy under the principle of honesty, fairness and justice.
Social obligations embedded in civil rights are directly proportional to their actual impact on society. As a matter of common sense, the greater the economic power and social influence of any person, the heavier the social responsibility and social obligation he or she has to shoulder; and vice versa. A company cannot exist in a social vacuum. Since a company draws nourishment from society and earns profits, it should take on the heavy responsibility of solving social problems and respecting and promoting social laws and policies. The stronger the company's economic power, the heavier and broader its social obligations should be. Corporate social responsibility should be closely linked to the size of the company's power.
To build a harmonious society and promote the overall interests of the society and the long-term interests of the society, we need to rely on the government's administrative intervention, but also rely on the conscious action of the market; we need to pay attention to the role of the government's payment-based intervention, but also pay attention to the role of the micro-corporate social responsibility system.
(3) The company's competitive strategy.
Strengthening corporate social responsibility not only grasps the bull's nose of building a harmonious society, but also helps to enhance the core competitiveness of the company. In many industries have ushered in the micro-profit era, the future of the company competition is no longer purely new technology, new products, the competition for talent, but the competition for social responsibility brand. Consciously undertake social responsibility is a smart company to occupy the market share of the business strategy. Specifically, there are the following benefits:
(1) help to enhance the integrity of the company, improve the company's image, prevent public **** relations crisis, to avoid the integrity of the strain. Some companies and their shareholders are insensitive to the interests of the public, rich but not expensive, and unable to obtain the public's heartfelt respect. Only successful companies that consciously assume social responsibility can grow into respected companies.
(2) It helps to reduce the company's production and operation costs. For example, if a company adopts the concept of circular economy, it not only helps to protect the environmental quality of the whole society, but also helps to reduce the company's operating costs. Another example is that the policy of hiring employees on a long-term basis helps to cultivate permanent loyalty among employees.
(3) It helps to reduce the company's financing cost. Investors always prefer to invest in companies that operate with integrity. A company that is dishonest to the company's stakeholders will find it difficult to maintain its integrity to investors.
(4) It helps to attract consumers who agree with the concept of corporate social responsibility. In recent years, there have been a number of cases in which a company has lost the market even though it has won a judgment in a consumer lawsuit. This is because, for whatever reason, consumers are unlikely to be loyal to a company just because they have lost at the feet of that company. Because consumers can vote with their money as well as with their feet.
(5) It helps to promote the maximization of the company's long-term interests. When a company takes on social responsibility, it may have to give up near-term, local interests, but it helps to maximize long-term interests.
Professor Curtis C. Verschoor of DePaulUniversity published a paper in the January 2002 issue of the Journal of Strategic Finance arguing that the2001BusinessEthicsCompanies ( Professor Curtis C. Verschoor published a paper in the Journal of Strategic Finance in January 2002, concluding that the 2001 Business Ethics Best Citizencompanies had significantly better overall business performance than other companies in the S&P 500 index. The "business ethics" focuses on seven categories of corporate stakeholders, including shareholders, employees, customers, communities, the environment, overseas stakeholders, and women. The findings of this study show once again that there is no disadvantage for companies to be socially responsible.
(4) People-oriented scientific development.
The Decision of the Third Plenary Session of the 16th Central Committee (hereinafter referred to as the "Decision"), when talking about the objectives and tasks of perfecting the socialist market economic system, emphasized that in accordance with the requirements of integrating urban and rural development, regional development, economic and social development, and the harmonious development of human beings and the natural environment, "to form a mechanism for promoting coordinated development of the regional economy; to improve the employment, income distribution The Decision calls for "adhering to an integrated approach and harmonizing the various interests in the reform process. It also calls for "adhering to a people-oriented approach, establishing a comprehensive, coordinated and sustainable concept of development, and promoting the all-round development of the economy, society and people". When talking about social law, the Decision particularly emphasizes "improving laws and regulations in the areas of labor, employment and social security, and effectively protecting the legitimate rights and interests of workers and citizens. Improvement of laws and regulations in the social field and sustainable development, and promote economic development and overall social progress".
In order to implement the people-oriented scientific concept of development, fully embodies the superiority of the socialist system, must reverse the past one-sided pursuit of the company's profit maximization, GDP maximization of the legislative thinking, and further emphasize the social interests, social justice, social justice, social stability, social harmony, the value of the company law system. If the historical mission of the company law only lies in the pursuit of short-term economic growth and economic efficiency goals, and at the expense of social stability, destruction of the environment and natural resources, accelerated polarization, creating social conflict, will run counter to the scientific concept of development. Therefore, the company law must be people-oriented scientific concept of development into specific legal norms, and effectively build a legal system that fully protects the rights and interests of workers, consumer rights and interests, environmental interests, the interests of socially disadvantaged groups and the interests of social ****, so as to promote the harmonious, comprehensive and sustainable development of the company and society. From a macro point of view, strengthening corporate social responsibility is an important part of building a harmonious society.
(v) social obligations to promote the realization of social rights.
Corporate social responsibility and social rights in human rights, especially consumer rights, labor rights are closely linked. Corporate social responsibility and social rights to defend the highest value is the same. As a highly condensed concept, social rights refer to all kinds of economic, social and cultural rights that embody social justice and belong to the category of human rights and fundamental freedoms. The term "economic, social and cultural rights" is very broad. It includes the 10 rights enumerated in the Economic, Social and Cultural Covenant, as well as other rights characterized by economic and social rights, such as the right to food, consumer rights, environmental rights and the right to development. The power of the political State was strong, but its capacity was limited. A one-sided emphasis on the positive obligations of States to realize social rights is not enough. This is evidenced by the fact that some Western countries, in the face of the crisis of the welfare state, have cut back on their social welfare budget expenditures. The invention of the welfare state has been a boon to the realization of social rights, but the social rights that the welfare state can guarantee are extremely limited, generally confined to the right to social security (including the right to unemployment benefits), but unable to ensure citizens' environmental rights, the right to work, the rights of consumers, etc. However, companies have a great potential to promote the realization of many social rights, such as protecting citizens' environmental rights, work rights, consumer rights, and the rights of workers to participate in the management of the company, as well as solving social problems such as unemployment and environmental protection at the root. Strengthening corporate social responsibility and promoting the advancement of social rights should be on the agenda of the human rights and business communities in the 21st century. Of course, linking corporate social responsibility with social rights as human rights is a serious challenge for both the human rights community and the business community.