论自我交易中董事的忠实义务

Loyal Duty of Directors of Self-dealing

现代公司治理中,掌握经营权的董事可能借由其经营权追求自身利益枉顾公司利益,进而伤害股东权益。在董事与公司的自我交易中,为了规范董事滥用职权,维护公司特别是股东合法权益,在比较法的视野下,通过对比分析我国与其他国家和地区的规范董事自我交易的法律理论与司法实践,提出了按照利益回避原则建立股东会或董事会事前审查决议制度,加强注意义务与忠实义务的双重约束,强化董事自我交易的惩罚性赔偿责任。

In the management of modern corporations,the board of directors,who in charge of corporate management related policies and making decisions on the major company issues,may act on behalf of themselves not the corporation when they have personal interest in the transactions of the corporation,which will in deed harm the interest of the shareholders.To regulate the abuse of power from the board of directors and defend the legal interest of the corporation and the shareholders in the transactions between the directors and corporation,through the comparative analysis of the legal theories and law practice on the self-dealing between China and foreign countries,it was proposed that a rule of pre-transaction review and approval by noninterest shareholders or directors was to be constructed under the interest avoidance principle,to increase the restriction of care duty and loyal duty,and to strengthen the punitive damages for self-dealing transactions by directors.