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上市公司治理中道德风险的司法防范机制有两种:一是国家启动的诉讼程序,二是股东启动的民事诉讼程序。由股东启动的民事诉讼程序即股东诉讼,在诉讼主体、诉因等方面具有特殊性,法律对其作了不同于一般民事诉讼的特殊规定。股东诉讼又可分为直接诉讼和间接诉讼,前者主要约束上市公司及其代理人侵害股东利益的行为;后者侧重于对上市公司治理中的道德风险加以防范。
There are two kinds of judicial prevention mechanisms for moral hazard in the governance of listed companies: one is the proceedings initiated by the state, and the other is the civil proceedings initiated by the shareholders. The civil litigation initiated by the shareholders, that is, the shareholder litigation, has particularity in litigant subject, litigation cause and so on, and the law makes special provisions different from ordinary civil litigation. The shareholder litigation can be divided into direct litigation and indirect litigation. The former mainly restrain listed companies and their agents against the interests of shareholders; the latter focuses on guarding against moral hazard in the governance of listed companies.