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我国新《公司法》实施6年来,在裁判具体案件尤其是在解决各种公司权利冲突时,仍然凸显出成文规则的固有缺陷,对此传统的法律解释学难以解决,因而公司冲突权利有效配置的法律经济学方法备受关注。不过,国内法学研究通常并不擅长基于约束条件的经济学思维,往往将高度抽象的冲突权利配置效率观,当作可以直接裁判具体争议案件的普适性原理原则,这既造成理论上的混乱,又导致司法裁判的偏差。我们试图从具体的公司纠纷案例中提炼出理论问题,揭示冲突权利有效配置命题的认识误区,以达到正本清源的目的。
In the six years since the implementation of the new “Company Law” in our country, the specific flaws in the referee, especially when resolving the conflicts of rights of various companies, still highlight the inherent defects of the written rules. Therefore, the traditional legal hermeneutics can not be solved effectively and the effective allocation of corporate conflict rights The law and economics approach has drawn much attention. However, the domestic jurisprudence research is usually not good at the economic thinking based on the constraint, and often regards the highly abstract view of efficiency allocation of conflict rights as the universally applicable principle principle that can directly adjudicate specific disputes, which not only causes theoretical chaos , But also lead to the deviation of judicial decisions. We try to extract the theoretical problems from the concrete cases of corporate disputes to reveal the misunderstanding of the effective allocation of conflicting rights propositions so as to achieve the original purpose of clearing the source.