Sustainability and Corporate Law

不仅是在金融危机爆发以来，企业和金融市场对更可持续的行为的需求以及对更可持续的经济活动的总体需求也变得越来越迫切。考虑到公司法在多大程度上可以成为企业可持续行为和建设可持续经济的工具，几乎没有研究表明这一点。不仅有明显的创新潜力：法律及其禁止和限制以及赋权和激励功能可以而且可能必须被用来为市场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监管框架，并在可能的情况下促进这些发展。相反，法律监管可以比以前更严厉地约束那些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中的关键参与者。从必须质疑纯粹的股东价值取向的前提开始，其他利益相关者的利益，如员工、债权人和客户的利益，以及气候和环境关切，正日益成为立法者的关注焦点。在一些欧盟成员国，也在欧盟一级，正在讨论监管措施，以促进可持续创业的发展；在一些法域，最近出台了相应的文书。在讨论的概念中，一方面是适用于所有企业的文书，如公司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。专著从德国和欧洲的角度讨论了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，从公司法的角度讨论了可持续发展概念的可操作性问题。其中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论述进行重新评估。这些核心概念，即公司的性质和宗旨问题、公司利益的数字或股份公司对共同利益的承诺问题，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，为了能够有效应对我们这个时代在国际和代际可持续发展框架下出现的当前生态、社会和经济挑战，有必要对这些挑战进行重新评估。

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.