论股东代表诉讼制度及立法完善
发布时间：2018-07-22 11:50
【摘要】： 我国于2005年10月27日颁布了新公司法,并于2006年1月1日起正式施行。新《公司法》中引入了股东代表诉讼制度,这俨然已成为我国实现公司现代化与国际接轨的重要标志之一。该制度的最终确立历经十余年的探索,其间经过了很多学者的反复研究、探索和论证,但在我国实施的状况却并不尽如人意。为什么我们经过多年的研讨,花费了很多心血才得以构建的制度,在实践中却遭遇如此尴尬。究其原因,无外乎是我国新《公司法》的有关规定仍然比较笼统、在司法实践过程中并不具备很强的针对性和可操作性造成的。市场经济体制具有共性,发达国家的经验对我们来说意义重大。本文通过借鉴其他国家的立法、司法经验,探讨如何构建一个以“当事人主义为基础,公司利益为核心,司法适度干预”的纵向的、动态平衡的诉讼构造,来真正实现股东、董事、公司各方利益的平衡,使股东代表诉讼制度真正具有可诉性。
[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.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
，
本文编号：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.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
，
本文编号：2137369
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