摘要
董事竞业禁止是现代公司法人治理结构中的一个重要问题。我国法律关于董事竞业禁止的规定有缺陷,主要表现在:缺乏必要的灵活性;主体范围不一致;期限不明确;竞业界限模糊;法律责任体系不完善。建构我国董事竞业禁止制度应该遵循以下四项基本原则———法益衡平原则、权利义务相一致原则、淡化差别待遇原则和可诉性原则。完善我国董事竞业禁止制度的五条具体意见是:改董事竞业的绝对禁止为相对禁止、统一董事竞业禁止义务的主体范围、明确规定竞业禁止义务的时间界限、明晰董事竞业的外延范围和完善法律责任体系。
Prohibition of business strife, one of the duties of the board members, is a major issue in the modern corporate governance structure. As a result of the separation of ownership and management of the corporation, the power of board members having no ownership in deciding the production and management of the corporation is being continuously strengthened. In order to preclude powerful board members from embezzling and jeopardizing the interests of the corporation and the shareholders, Western countries have promulgated laws to ensure their duties, including the duty not to compete. In the last ten years, China published some laws and regulations regarding the definition and disposal of board members' act concerning the prohibition of business strife. This system did not work well due to some deficiencies and defects, particularly the inconsistency with the subject scope, the uncertainty of duration, the obscurity of competitive limits, the imperfection of the legal liability system and the lack of necessary flexibility. To restructure the system of prohibition of business strife in China, we should follow four fundamental principles: legal interests equity, rights consistent with obligation, mitigating discrimination treatment and litigation remedy. Furthermore, there are five suggestions in this article to perfect the system of prohibition of business strife. First, to change absolute prohibition into relative prohibition and to loosen some restrictions conditionally. Second, to unify the subject scope. Every enterprise should assume equal responsibility under the same regulation, regardless of its ownership style. Third, to define the duration that includes either tenure of the board member or period after his post. Fourth, to define the extent of the duty, especially, to articulate the definitions of ″serving for his own account ″ and ″serving for any other person's account ″, to demarcate the extent of ″the same business as the company ″. Finally, to perfect the legal liability system, especially t
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2004年第4期53-59,共7页
Journal of Zhejiang University:Humanities and Social Sciences
关键词
竞业禁止
董事义务
立法缺陷
原则
建议
prohibition of business strife
board member's duty
lack of legislation
principle
suggestions
