论公司法的私法品格——检视司法的立场

The Private Law Character of Company Law--From the Judicatory Standpoint

公司法在总体上属于私法。因此,法官在司法过程中要注意彰显股东自治和公司自治理念,要理解"公司事务公司自决"原则的含义,要认识到司法对公司纠纷的干预应保持一定的节制,坚持有限干预的原则。在多数情形下,法院对公司内部纠纷只作程序性监督,而启动实体性干预的前提是"竭尽公司内部救济"。为使公司法判决不至于迷失方向,公司法改革不偏离轨道,我们主张:坚持公司法的私法精神,并将其演绎为自觉的立法和司法行动。

Company law is by and large a private law. That is why a judge should insist on shareholder's and company's autonomy in the judicial procedure, and should understand the principle of ' company affairs decided by itself' and of restricted intervention by the court in company affairs. In most cases, the court usually exercises a routine supervision over the inner issues of a company. Not until the inner resources of a company are exhausted will the court practice the substantive intervention. In order to ensure the right way of the judicial decision and the reform of company law, we must insist that company law is in spirit a private law, which should be embodied in law making and judicial procedure.