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公司法上的停止侵害请求权制度来源于民法,其价值诉求是以较小的成本阻止较大的损害发生。停止侵害请求权制度对公司内部有缺陷的治理制度具有重要的弥补作用。在制度设计上,股东停止侵害请求权的行使主体除了股东以外,基于我国公司治理中监事会权力虚置的现状,还应将监事列为行使主体;股东停止侵害请求权请求制止的范围只能是违反法律、法规的行为和章程禁止的行为,违反一般性的注意义务和需要具体裁量的忠实义务的行为不应纳入制止范围;股东停止侵害请求权请求制止的对象为董事、监事、高级管理人员;股东停止侵害请求权的救济措施是对没有停止实施相关行为的被申请人直接推定其行为具有过错,要求其承担损害赔偿的责任。
The system of cessation of claim in company law derives from civil law, and its value appeal is to prevent greater damage with less cost. The system of claim injunction has an important complement to the defective governance system in the company. In the aspect of system design, in addition to the shareholders, the exercising subject of the shareholder to stop infringement of the right of claim should also regard the supervisor as the exercising subject based on the status quo of the power of the board of supervisors in the corporate governance of our country. Violations of laws, regulations and acts prohibited by the articles of association, violations of general duty of care and faithful obligations requiring specific discretion should not be included in the scope of deterrence; shareholders should cease to infringe upon the right of claim The objects requested to be stopped are directors, supervisors and senior management ; The shareholder’s remedy to stop infringement of right of claim is that it has the fault of the respondent that it has not stopped the implementation of the relevant act to directly presume its conduct and requires it to bear the liability for damages.