중국에 있어서 회사소송규칙의 새로운 변화와 적용상의 문제점 검토 -「회사법 사법해석(4), (5)」에 대한 법적 평석을 중심으로-

There are many principle norms in Chinese company law, and there are areas that lack specific rules due to short of judicial experience. Therefore, in judicial practice, the Supreme People's Court of China has formulated and applied judicial interpretations on the judicial application of company law to fill the loophole and address issues that arise in the judicial application of company law. So far, the Supreme People's Court has published and applied five “Company Law Judicial Interpretations”. Among them, the recently released “Company Law Judicial Interpretations (4)” and “Company Law Judicial Interpretations (5)” are mainly about company litigation. The relevant content deserves attention. The main contents of the “Judicial Interpretation of the Company Law (4)” consists of the company's resolution lawsuit, the shareholder's right-to- knowledge lawsuit, the shareholder's surplus distribution lawsuit, the protection of shareholders' preferential purchase rights, and the shareholders’ representative lawsuit. “Judicial Interpretation of the Company Law (5)” consists of the regulation of improper related party transactions, the dismissal and compensation of directors, the limitation of the dividend distribution period, and the dispute resolution mechanisms between shareholders of limited liability companies. These contents contain the recent experience in adjudicating Chinese company disputes and reflect the new changes in Chinese company litigation rules. The recent development and changes of this kind of Chinese company litigation rules not only have a lot of contents that deviate from the logic of existing company law in China, but also has many differences from the company laws of other civil law countries and even the Anglo-American company laws. We should pay attention to these changes both on the legislative and interpretive perspective, and it is necessary to conduct an in-depth review of its accompanying problems and solutions. In view of this, this article makes a detailed legal analysis and evaluation of the contents of “Company Law Judicial Interpretation (4)” and “Company Law Judicial Interpretation (5)”, and discusses the problems in the application of these two judicial interpretations. At the same time, it pointed out the positive role and limitation of judicial interpretation in the development of Chinese company litigation system. It is considered that when formulating judicial interpretations, the logical system of the company law should be considered, and no provision that infringes the legislative power of the legislature should be established. In order to further advance China's company law, it is not enough just to formulate judicial interpretations, and a comprehensive revision of the company law is needed.