論股東代表訴訟制度及立法完善
發(fā)布時(shí)間：2018-07-22 11:50
【摘要】： 我國于2005年10月27日頒布了新公司法,并于2006年1月1日起正式施行。新《公司法》中引入了股東代表訴訟制度,這儼然已成為我國實(shí)現(xiàn)公司現(xiàn)代化與國際接軌的重要標(biāo)志之一。該制度的最終確立歷經(jīng)十余年的探索,其間經(jīng)過了很多學(xué)者的反復(fù)研究、探索和論證,但在我國實(shí)施的狀況卻并不盡如人意。為什么我們經(jīng)過多年的研討,花費(fèi)了很多心血才得以構(gòu)建的制度,在實(shí)踐中卻遭遇如此尷尬。究其原因,無外乎是我國新《公司法》的有關(guān)規(guī)定仍然比較籠統(tǒng)、在司法實(shí)踐過程中并不具備很強(qiáng)的針對性和可操作性造成的。市場經(jīng)濟(jì)體制具有共性,發(fā)達(dá)國家的經(jīng)驗(yàn)對我們來說意義重大。本文通過借鑒其他國家的立法、司法經(jīng)驗(yàn),探討如何構(gòu)建一個(gè)以“當(dāng)事人主義為基礎(chǔ),公司利益為核心,司法適度干預(yù)”的縱向的、動(dòng)態(tài)平衡的訴訟構(gòu)造,來真正實(shí)現(xiàn)股東、董事、公司各方利益的平衡,使股東代表訴訟制度真正具有可訴性。
[Abstract]:China promulgated the new Company Law on October 27, 2005, and came into force on January 1, 2006. The shareholder representative litigation system has been introduced into the new Company Law, which has become one of the important symbols of realizing the modernization of the company in our country. The final establishment of the system after more than ten years of exploration, during which many scholars have repeatedly studied, explored and demonstrated, but the implementation in China is not satisfactory. Why do we face so much embarrassment in practice when we spend so much effort to build a system? The reason is that the relevant provisions of the new Company Law of our country are still relatively general, which is caused by the lack of strong pertinence and maneuverability in the course of judicial practice. Market economy system has commonness, the experience of developed country is significant to us. Based on the legislation and judicial experience of other countries, this paper discusses how to construct a vertical, dynamic and balanced litigation structure based on "litigant doctrine, corporate interests as the core, judicial moderate intervention" to truly realize shareholders. The balance of the interests of the directors and all parties of the company makes the shareholder representative litigation system really actionable.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D922.291.91
，
本文編號：2137369
[Abstract]:China promulgated the new Company Law on October 27, 2005, and came into force on January 1, 2006. The shareholder representative litigation system has been introduced into the new Company Law, which has become one of the important symbols of realizing the modernization of the company in our country. The final establishment of the system after more than ten years of exploration, during which many scholars have repeatedly studied, explored and demonstrated, but the implementation in China is not satisfactory. Why do we face so much embarrassment in practice when we spend so much effort to build a system? The reason is that the relevant provisions of the new Company Law of our country are still relatively general, which is caused by the lack of strong pertinence and maneuverability in the course of judicial practice. Market economy system has commonness, the experience of developed country is significant to us. Based on the legislation and judicial experience of other countries, this paper discusses how to construct a vertical, dynamic and balanced litigation structure based on "litigant doctrine, corporate interests as the core, judicial moderate intervention" to truly realize shareholders. The balance of the interests of the directors and all parties of the company makes the shareholder representative litigation system really actionable.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D922.291.91
，
本文編號：2137369
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