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我国《公司法》的修订创建了股东对董事的直接诉讼和派生诉讼,拓宽了司法对公司运作的介入。然而在发挥诉讼对股东权益维护的同时,我们也必须注意到董事权责的平衡和司法对经营世界的尊重。美国的商业判断规则在股东对董事诉讼中具有排除司法实质审查、确立诉讼的证据规则、在派生诉讼中建立用尽内部救济原则的功能。我国在借鉴商业判断规则时,应作成文法化的引进。在司法解释中细化董事的注意义务,明确商业判断规则的适用条件和商业判断规则的运作程序,完善派生诉讼的前置程序。
The amendment of the “Company Law” in our country has created the direct lawsuit and the derivative lawsuit by the shareholders to the directors, broadening the judicial intervention in the operation of the company. However, while safeguarding the rights and interests of shareholders, we must also take note of the balance of powers and responsibilities of directors and the respect of the world in which the judiciary operates. The commercial judgment rules of the United States have the function of excluding the judicial substantive examination from the shareholders in the litigation of directors, establishing the evidence rules of litigation and establishing the principle of running out of internal relief in derivative litigation. When our country refers to the rules of commercial judgment, we should make the introduction of the legalization. In the judicial interpretation, the directors should pay attention to their duty of care, clarify the applicable conditions of business judgment rules and the operational procedures of business judgment rules, and improve the pre-process of derivative proceedings.