在我国上市公司破产重整中,在“中小股东保护”的口号指引下,鉴于对公司重整后营运价值和“壳”资源价值的特殊考量,股东除保有对重整计划的表决权外,被监管机构赋予了对资产重组和债务重组的实质否决权。破产法“绝对优先原则”的缺失,导致股东可通过法院强制批准绑架债权人,其权益削减比例实际远远低于普通债权人,违背了破产制度一般法理。“无辜”的中小股东应通过公司法制度设计保护自身权益、追究置公司于资不抵债境地之有关人员的责任。在重整中,若以保护中小股东利益为先可能扭曲资本市场的激励机制,保护债权人利益、促进公司重生以实现社会利益才是破产重整正当的制度追求。 Under the slogan of “Protection of Small and Medium Shareholders” in the bankruptcy reorganization of China’s listed companies, in view of the special considerations on the operational value of the Company after the reorganization and the value of the “Shell” resource, Voting rights, the regulatory body has given the assets of the reorganization and debt restructuring substantive veto. The absence of the bankruptcy law and the principle of “absolute priority” led shareholders to obtain the approval of the kidnapping of creditors by the court. The ratio of their rights and interests reduction was far lower than ordinary creditors and violated the general law of bankruptcy. The “innocent” minority shareholders should design and protect their own rights and interests through the legal system of the company and hold them accountable for the company’s personnel in insolvent positions. In the process of reorganization, if the interests of small and medium shareholders are protected, it may distort the capital market incentive mechanism, protect the interests of creditors and promote the rebirth of the company so as to realize the social interests, it is the pursuit of a proper system of bankruptcy and reorganization.