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目前,我国公司代表人违反注意义务侵害第三人权益责任归属无论是在理论层面上还是在立法层面上的普遍观点是:由于我国公司奉行实在说,公司代表人的职务行为当然视为公司的行为,其导致的侵权责任一概由公司承担,而个人行为导致的侵权责任则由其个人承担,公司代表人的注意义务仅止于公司。在面对公司外的第三人时,即使是一般的注意义务之违反,也不承担任何责任。这在实践中遇到了一个很无奈的问题:公司代表人明知道执行职务会侵害第三人权益,但是由于其不承担任何责任,仍然执意为之,实有共同侵权之意,于此,我们不妨认为它违反了对第三人的注意义务。因为以公司实在说,虽然代表人是公司机关,其职务行为应该属于公司行为,但是,我们也不能否定,其行为的行使最终要由具体的自然人为之。所以,无视代表人之自然属性,实乃我们认识之误区。如果承认了代表人自然之属性,那么职务行为之责任全概由公司承担当属不当,代表人应在其过错范围内对第三人承担责任。
At present, the common view that our company representatives violate the obligation of paying attention to infringe the rights and interests of the third party is a common view both in theory and in legislation. Since the practice of our country’s firm means that the job of company representative is of course regarded as the Behavior, the liability for infringement caused by the company is always borne by the company, while the personal responsibility for infringement caused by the individual act is borne by the individual. The duty of care of the representative of the company is only limited to the company. In the face of a third party outside the company, even the general duty of care breach, does not assume any responsibility. This in practice encountered a very helpless question: the company representatives knowingly perform their duties will infringe the rights and interests of third parties, but because they do not assume any responsibility, still insist on it, the real intention of infringement, here, we Think of it as violating the third person’s duty of care. Because the company really said that although the representative is a corporate organ, his job should belong to corporate behavior, but we can not deny that the behavior of its ultimate exercise by the specific natural person. Therefore, disregarding the natural attributes of the representative is really a misunderstanding of our understanding. If the natural attribute of the representative is admitted, then the responsibility of the duty behavior should be entirely unduly borne by the company. The representative shall assume the responsibility to the third party within the scope of its fault.