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公司既有私权利属性又有公权利属性,是矛盾的统一体。我国《公司法》第一百八十三条规定的司法解散制度即是其公法性质的体现,但此规定没有充分顾及其私法属性,易被滥用。因此,适用司法解散制度时应注意几个问题:(1)在公司僵局纠纷案件审理中应遵循自力救济优先原则、慎重作出解散的判决结果原则、利益衡量原则;(2)诉讼主体的确定问题;(3)应将调解设置为必经程序;(4)审理时应适时行使自由裁量权和释明权;(5)参照适用公司整顿制度;(6)法院判决公司强制解散时应着重审查:公司僵局确实存在;是否滥用公司僵局条款;公司解散确实必要。
The company has both private rights as well as public rights and interests, and is a contradictory unity. The judicial dissolution system stipulated in Article 183 of the Company Law of the PRC is a manifestation of the nature of its public law. However, this provision does not fully take into account its private law properties and is easily abused. Therefore, several issues should be paid attention to when applying the system of judicial dissolution: (1) the principle of priority of self-help should be obeyed in the trial of the company deadlock disputes, the judgment principle of dissolution and the principle of interest should be carefully made; (2) the definition of subject of litigation ; (3) the mediation should be set as a necessary procedure; (4) the trial should exercise discretion and the right of interpretation timely; (5) refer to the applicable company reorganization system; (6) the court ruled that the company should be forced to dissolve the review : The corporate stalemate does exist; it is abusing the terms of the corporate stalemate; the dissolution of the company is really necessary.