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董事经营决策的尊重审查模式契合了适应性效率的要求,有利于鼓励董事进行尝试性试验。但是,在商事判断规则作用下,董事问责需原告负担严苛的举证责任,董事决策审查形式化以及注意标准的不确定性,使得注意义务几乎被掏空,介于重大过失与恶意之间的董事失信情形往往逃脱法律责任。诚信路径不仅是问责空隙的填补机制,也是克服股东与董事之间信息不对称问题的重要机制。20世纪90年代以来董事问责的司法实践催生了诚信路径,诚信概念亦因创造性转化而获得新生,其行为标准日益明晰,司法审查可操作性增强。我国可通过《公司法》的司法解释界定诚信的行为标准,将故意让公司违法、不坦诚告知、滥用职权和严重失职纳入其涵摄范围,从而引入诚信问责路径。
The mode of compliance review of directors’ business decision-making meets the requirements of adaptive efficiency and encourages directors to conduct tentative tests. However, under the influence of the rules of commercial judgment, the director’s responsibility requires the plaintiff to bear the burden of proof, the formalization of directors’ decision-making review and the uncertainty of the standard of attention, so that the duty of care is almost emptied, ranging from grossly negligent to malicious Dereliction of directors often escaped legal responsibility. The path of integrity is not only a mechanism to fill the gap of accountability, but also an important mechanism to overcome the problem of information asymmetry between shareholders and directors. Judicial practice of accountability of directors has given rise to a path of honesty since the 1990s. The concept of sincerity has also been reborn as a result of creative transformation. Its standards of conduct are becoming clearer and judicial review is more manageable. China can define the standard of good faith through the judicial interpretation of the “Company Law”, and will intentionally allow the company to infringe upon the scope of culpability through illegal, frank, abuse of power and serious misconduct, thereby introducing a path of honesty and accountability.