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控股股东诚信义务的研究由来已久,其必要性和合理性早无异议,近些年最高法指导案例也对诚信义务的实践判断标准做出了解释。但根据我国上市公司的数据证明,基于控股股东诚信义务的内部资本市场效率低下;一些判例中法官对诚信义务的兜底条款的适用也难以把握。内部资本市场效率的提高从根本上要通过完善股权结构来实现,与此同时可将税法上应对兜底条款和法律规避的“实质课税原则”引入到公司法诚信义务之中,由法官通过“实质判断规则”行使有限的自由裁量权来应对控制股东的法律规避行为。
The research on controlling shareholder’s obligation of fiduciary duty has a long history and its objectivity and rationality have no objection for a long time. In recent years, the guiding principle of the supreme law has also explained the standard of practice judgment of fiduciary duty. However, according to the data of listed companies in our country, the internal capital market based on the controlling shareholder’s fiduciary duty is inefficient. In some jurisdictions, the application of the full-fledged clause of the fiduciary duty by judges is also difficult to grasp. The improvement of the efficiency of the internal capital market is fundamentally achieved by improving the ownership structure. At the same time, the “substantive taxation principle” that responds to all the provisions of the tax law and legal evasion can be introduced into the fiduciary duty of company law. Judges Through the “substantive judgment rules ” to exercise limited discretion to deal with the controlling shareholder of legal evasion behavior.