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在风险社会的视角下,上市公司具有资合性的特点,这固然提高了公司运行的效率,却也带来了更大的风险例如高管的违法风险和道德风险,尤其影响持股份额较小的股东(股民)的利益。现行的制度下主要由证券法和公司法以及部分刑法的部分罪名对这样的行为进行事后归责。笔者认为,仅仅这样的事后规制机制并不能有效的达到约束上市公司高管的的效果。在这样一个风险共担的社会,譹訛除了多数学者和股民认为的降低入罪门槛的措施外,笔者认为,加强事前和事中的调整,建立以其一个信息对等的平台进行监督,才能更好地保证上市公司高管“戴着脚镣”为公司经营尽到自己的忠实义务与勤勉义务。
In the perspective of risk society, listed companies have the characteristics of capital adequacy, which not only improves the efficiency of the company’s operation, but also brings greater risks such as the illegal and moral risk of senior executives, especially affecting the shareholding more Small shareholders (shareholders) interests. The current system mainly consists of the securities law and the company law, as well as part of the criminal law part of the charge of these acts after the blame. The author believes that only such a post-regulatory mechanism can not effectively achieve the effect of restraining the executives of listed companies. In such a risk-sharing society, in addition to the measures that most scholars and investors think of lowering the threshold of incrimination, the author believes that to strengthen the adjustment in advance and in events and to establish a platform for monitoring information in the same capacity can Better to ensure that senior executives of listed companies “wearing their feet ” for the company to do their duty of loyalty and diligence obligations.