公司治理结构中的职业经理人法律地位探究

发布时间：2018-05-12 11:49

本文选题：公司治理 + 职业经理人　；参考：《华东政法大学》2011年硕士论文

【摘要】：现代企业发展中,职业经理人是资本所有权与经营权相分离的必然产物,职业经理人的存在及其功能的发挥是现代经济发展的微观基础。由于内部和外部的众多原因,职业经理人在我国层一度处于尴尬的境地。倡导董事会中心主义的公司治理模式,又在分权制衡等角度,非常重视职业经理人的作用。职业经理人在董事会中发挥作用,可以防止出现资本的一股独大,也可以防止出现内部人控制的局面。准确定位职业经理人的角色可以预防股东会、董事会、监事会的监督不足,也可以维护公司和股东的利益,维护交易安全。公司治理合法化、可持续化已经是所有股东和经营层的共同呼声,发挥职业经理人作用,完善公司治理结构是现代公司立法前沿的必然趋势。职业经理人在公司治理中究竟处于何种法律地位?明确分析公司法上职业经理人的法律地位,既有理论意义,也是现实中迫切解决的问题。民商合一的大陆法系国家提倡交易安全,一般从行为法角度解读经理人与商人的关系,以契约关系取代经理人的身份关系,从委托代理角度定位经理人的行为。职业经理人接受董事会的授权,行使法律和公司章程赋予他们的职责,这便是大多数民商合一大陆法系国家的观点。英美法系国家和民商分立的大陆法系国家追求商事效率,鼓励经理人创造性和自主性,从人法角度将公司经理人与一般商人区分开,以雇佣理论阐述职业经理人的权利源泉。职业经理人一般为公司的高级雇员,与公司之间是特定的服务契约关系,基于职务身份通常被视为公司的代理人而拥有一定的自主权,并对公司负信义义务。当职业经理人违背信义义务时,公司既可以基于雇佣服务关系追究经理人的职务责任,也可以按拟制信托的理论,将职业经理人的额外所得转归公司所有。我国公司法借鉴英美国家的实用主义,在公司法中列举了董事、经理等岗位的主要职能,认为职业经理人主要担任的是公司高级管理人员的职位,受雇于公司而拥有经理权。公司法中也提及了董事、监事、高级管理人员应当遵守勤勉和忠实义务,并且提及了赔偿责任和公司归入权。但公司法所列举的职业经理人的忠实勤勉义务大多为遵守法律法规和公司章程的义务,这样就没有具体的适用标准,可操作性不强,有很大局限性。笔者在其他国家的比较中得出对我国公司法明确职业经理人法律地位,发挥职业经理人在公司治理作用的一些建议：在成文法中明确职业经理人的权利、权力源泉,同时要规范经理人的利益激励制度；丰富忠实勤勉义务的内涵,对职业经理人行为具有指引作用；同时更大程度地明确职业经理人的责任承担机制。
[Abstract]:In the development of modern enterprises, professional managers are the inevitable outcome of the separation of capital ownership and management rights. The existence and function of professional managers are the micro basis of modern economic development. Because of many internal and external reasons, professional managers were once in an awkward position in our country. At the angle of separation of powers and checks and balances, the role of professional managers is attached great importance to the corporate governance mode of board of directors centralism. Professional managers play a role in the board of directors, can prevent the emergence of a dominant capital, but also prevent insider control of the situation. Accurately positioning the role of professional managers can prevent the shareholders' meeting, the board of directors, the board of supervisors from inadequate supervision, but also can protect the interests of the company and shareholders, and maintain the security of transactions. The legalization and sustainability of corporate governance is the common voice of all shareholders and management levels. It is an inevitable trend of modern company legislation to play the role of professional managers and perfect the corporate governance structure. What is the legal status of professional managers in corporate governance? Clearly analyzing the legal status of professional managers in company law is not only theoretical significance, but also an urgent problem to be solved in reality. The countries of civil law system in which the civil and business are United advocate transaction security, generally interpret the relationship between manager and businessman from the angle of behavior law, replace the identity relationship of manager with contract relationship, and locate the behavior of manager from the angle of principal-agent. Professional managers are authorized by the board of directors to perform their duties under the law and the articles of association, which is the view of most civil law countries. The common law countries and the civil law countries which are separated from the civil law system pursue the commercial efficiency, encourage the managers' creativity and autonomy, distinguish the company managers from the general businessmen from the angle of personal law, and expound the source of the professional managers' rights in the employment theory. The professional manager is usually the senior employee of the company, and the relationship between the professional manager and the company is a specific service contract relationship. Based on his position, the professional manager is usually regarded as the agent of the company and has certain autonomy and fiduciary obligation to the company. When the professional manager disobeys the fiduciary duty, the company can not only investigate the manager's duty responsibility based on the employment service relation, but also transfer the extra income of the professional manager to the company according to the theory of fictitious trust. Our company law draws lessons from the pragmatism of Anglo-American countries and lists the main functions of directors and managers in the company law. It is believed that the professional managers are mainly in the positions of senior managers of the company and are employed by the company and have the managerial power. The company law also refers to the duty of diligence and loyalty of directors, supervisors and senior managers, and the liability and the right of corporate subordination. But the professional managers' duty of loyalty and diligence listed in the Company Law is mostly the obligation to abide by laws and regulations and articles of association, so there is no specific applicable standard, the operability is not strong, and there are great limitations. In the comparison of other countries, the author draws some suggestions to clarify the legal status of professional managers in China's company law and to give full play to the role of professional managers in corporate governance: to clarify the rights and sources of power of professional managers in statutory law. At the same time, we should standardize the interest incentive system of managers; enrich the connotation of loyalty and diligence obligations, and guide professional managers' behavior; at the same time, we should make clear the responsibility of professional managers to a greater extent.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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