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在我国近年暴露出来的公司治理问题中,中小股东及公司债权人的权益频遭侵害而不能得到有效救济的情况最为严重。其原因虽多,但公司董事第三人责任制度的缺失,对其责任性质、主观要件及归责原则的模糊认识,社会公众无法得到正确引导以及司法审判处于混乱状态等,为其几大根源所在。考虑到我国商法一般规则尚未确立,公司法处于民法特别法的地位,因此公司董事第三人责任的性质应当属于特别法定责任,主观要件应当有恶意或者重大过失,归责原则应当为过错责任以及特定情形下的推定过错责任原则,而不宜适用无过错责任原则。
In the problems of corporate governance exposed in recent years in our country, it is most serious that the rights and interests of minority shareholders and corporate creditors are infringed frequently and can not be effectively remedied. Although there are many reasons for it, its lack of responsibility system for the third party, the vague understanding of the nature of its responsibility, the subjective elements and the principle of imputation, the failure of the public to be properly guided, and the judicial trial in a state of chaos are the major causes Where you are. Considering that the general rules of commercial law in our country have not yet been established and the company law is in the position of the special law of civil law, the third party liability should be of special statutory responsibility. The subjective elements should be malicious or grossly negligent. The principle of attribution should be the fault liability and Under certain circumstances, the principle of presumption of fault liability, but should not apply the principle of non-fault liability.