Sustainability and Corporate Law

不仅自金融危机爆发以来，对企业和金融市场更可持续行为的需求以及对一般更可持续经济活动的需求变得越来越迫切。令人惊讶的是，很少有研究考虑公司法在多大程度上可以作为企业可持续行为和建设可持续经济的工具。不仅有明显的创新潜力：法律的禁止和限制以及它的扶持和激励功能可以而且也许必须用来为市场上在可持续性和共同利益方面已经明显出现的积极发展提供一个管理框架，并尽可能促进这些发展。相反，法律法规可以比以前更严厉地惩罚无视各自现有要求的公司。公司法特别适合促进这两个方面，因为它直接将公司作为市场的关键参与者。从纯粹的股东价值取向必须受到质疑的前提出发，其他利益相关者的利益，如雇员、债权人和客户的利益，以及气候和环境问题，越来越多地成为立法者关注的焦点。在一些欧盟成员国，也在联盟一级正在讨论监管措施，以促进可持续创业的发展；在一些司法管辖区，最近采用了相应的文书。在讨论的概念中，一方面是适用于所有企业的文书，例如企业社会责任或可持续投资的文书，另一方面是对自愿致力于可持续目标的企业的法律促进，例如通过引入认证制度或提供独特的法律形式。该专著从德国和欧洲的角度讨论了在公司法领域有哪些立法文书可以促进可持续的公司治理。在此基础上，本文从公司法的角度探讨可持续发展概念的可操作性问题。一个重点是审查现有的公司法核心概念，这些概念需要根据当前的可持续性话语进行重新评估。这些核心概念，即公司的性质和目的问题，公司利益的数字或股份公司对共同利益的承诺，并不直接涉及可持续性问题，因为它们是公司法的传统和历史问题。然而，它们的重新评价是必要的，以便能够有效地应付我们这个时代的生态、社会和经济挑战，这些挑战是在国际和代际背景下可持续性的保护伞下出现的。

The demand for more sustainable behaviour in businesses and on financial markets as well as the need for more sustainable economic activity in general, have become increasingly urgent not only since the outbreak of the financial crisis. There has been surprisingly little research considering the extent to which corporate law can act as a vehicle for sustainable behaviour in businesses and for building a sustainable economy. Not only is there a clear potential for innovation: the law with its prohibitions and restrictions as well as its enabling and incentive function can and perhaps has to be used to provide a regulatory framework for the positive developments that are already clearly emerging in the markets in terms of sustainability and common good and promote them wherever possible. Conversely, legal regulation can discipline companies that disregard respective existing requirements more strongly than before. Company law is particularly suitable to promote both aspects, as it directly addresses companies as the key players in the markets. Starting from the premise that a pure shareholder value orientation must be questioned, the interests of other stakeholders, such as employees, creditors and customers, as well as climate and environmental concerns are increasingly being moved into the focus of the legislator. In some EU member states but also at the Union level regulative measures are being discussed in order to promote the development of sustainable entrepreneurship; in some jurisdictions, corresponding instruments have recently been introduced. Among the discussed concepts are, on the one hand, instruments applicable to all enterprises, such as those of corporate social responsibility or sustainable investment, and, on the other hand, the legal promotion of enterprises that voluntarily commit themselves to the goal of sustainability, e.g. by introducing certification systems or providing unique legal forms.The monograph discusses – from a German and European perspective – which legislative instruments are available in the field of corporate law to promote sustainable corporate governance. In this vein, the question of the operability of the concept of sustainable development is discussed from a corporate law perspective. One focus is the examination of existing core concepts of corporate law that require re-evaluation in light of the current sustainability discourse. These core concepts, namely the question of the nature and purpose of the corporation, the figure of the company interest or the commitment of the stock corporation to the common good, do not directly touch upon sustainability issues as they are traditional and historical questions of corporate law. However, their re-evaluation is necessary in order to be able to effectively meet the current ecological, social and economic challenges of our time, that arise under the umbrella of sustainability in an international and intergenerational context.