论文部分内容阅读
公司高管的勤勉义务与忠实义务,是作为公司法核心与灵魂的信义义务之一体两翼。然而,我国司法运用勤勉义务规范的实证分析表明,我国法官运用勤勉义务规范来裁断案件的比例严重偏低,而且仅有的数例案件论理简单,逻辑粗疏,另外,由于缺乏英美法中通行的商业判断原则的支撑,案件裁决中过于彰显的个性元素伤害了法律的制度价值。鉴于此,亟须从立法与司法层面对此加以完善。在立法上确立以客观标准为主、特别约定为辅的高管勤勉义务判断标准,并在司法中引入商业判断原则的基本元素,以真正实现勤勉义务规范的制度价值。
The diligence and faithful obligations of the company’s senior management are the two wings of the faithful obligation as the core and soul of the company law. However, the empirical analysis of the diligence and obligation of our judiciary shows that the proportion of judges using diligence and obligation to judge cases is seriously low, and the only few cases are simple and logical arguments. In addition, due to the lack of common law in Anglo-American law, The support of the principle of business judgment, the individual elements of the case award that are too obvious have hurt the legal system value. In view of this, it is imperative to improve this both from the legislative and judicial levels. In legislation, it establishes the criteria of diligence and obedience to senior management with objective criteria as the basis and special agreement as the supplement, and introduces the basic elements of the principle of business judgment in the judicial system so as to truly realize the institutional value of diligence and obligation.