董事对第三人的义务探析

发布时间：2018-06-04 06:47

本文选题：第三人 + 公司目的　；参考：《中央民族大学》2011年硕士论文

【摘要】：从公司作为一种极富创造性的组织形式产生初期,董事承担着公司经营管理的具体工作,而随着资本所有与经营分离的深化,股东会中心主义逐渐被董事会中心主义取代,董事成为公司的最重要的决策者,对董事课以义务成为约束董事权力的重要途径,而如何完善董事义务体系以更好地适应经济的迅速变化成为公司法研究的重要课题。随着公司法律人格的不断受到认可,以及董事作为公司的代理人、受托人等法律地位理论的不断研究,董事负有对公司的义务毋庸置疑,但是由于公司在经济中越来越重要,董事的决策行为不仅影响着公司,更加影响着董事与公司的法律关系之外的第三人,为了保障第三人的合法权益免受董事行为的侵害,使董事对第三人负有义务成为最重要的途径。关于如何设计董事对第三人义务制度体系,主要存在两类观点。一类是传统公司法持有的董事仅对股东负有义务,主要是从所有权、合同的不完备性、剩余请求权三个方面支持该观点,该观点随着公司法的发展可细分为董事仅对股东整体负有义务、董事在特殊情形下对单个股东负有义务、董事对现在和将来的股东总和负有义务三个小观点。另一类是20世纪以来随着社会责任理论等理论发展和大规模收购潮带来严重社会问题等现实需要而提出的董事对股东和股东外第三人均负有义务的观点,该观点的支持者主要是从对质疑公司的所有权仅属于股东、股东外第三人与公司的合同也不完备等方面理由进行反驳,并认为董事对股东外第三人负有义务是实现公司社会责任的重要方式,该观点可以细分为董事在特定情形下对特定股东外第三人负有义务、董事有权考虑股东外第三人利益、董事必须考虑股东外第三人利益三个小观点。本文基于对以上观点的分析,提出董事对第三人义务的重新构建。首先,认为对“公司目的”的理解,是建构董事对第三人义务体系的基础。其次,通过对与公司目的紧密相连的“公司利益”进行解释达到保护第三人利益的效果,即本文认为,公司利益是建构完善的董事对第三人义务体系的途径。再次,本文亦从公司所有权、剩余请求权、专业分工、易于操作四个方面论述理由,并提出本文的结论：董事义务的对象为投资者(股东和债权人),董事对且仅对股东和债权人负有义务；基于对公司逻辑的完备性考虑,本文认为在董事对第三人义务的性质上应当采取间接义务说。最后,结合我国现行《公司法》、《破产法》、《证券法》、《上市公司治理准则》的规定,本文指出：我国现有制度将董事义务的相对人范围限于公司和股东,对于股东外第三人的利益仅在指导性文件中要求董事“同时注意”,本文认为有一定合理性,但对股东外第三人保护并不充足。由此,本文一并就我国董事对第三人义务体系的构建从主体、标准、对象三方面提出建议。
[Abstract]:From the beginning of the company as a kind of extremely creative organization form, the director is undertaking the concrete work of the management of the company, but with the deepening of the separation of the capital ownership and the management, the centralism of the shareholders' meeting is replaced by the centralism of the board of directors gradually. The director becomes the most important decision maker of the company, the obligation to the director becomes the important way to restrain the director's power, and how to perfect the director's obligation system to adapt to the rapid change of the economy better becomes the important subject of the company law research. With the recognition of the legal personality of the company and the study of the theory of the legal status of the director as the agent and trustee of the company, there is no doubt that the director has the obligation to the company, but the company is becoming more and more important in the economy. The decision behavior of the directors not only affects the company, but also affects the third person outside the legal relationship between the director and the company. In order to protect the legitimate rights and interests of the third party from the director's behavior, It is the most important way to make the director liable to the third party. There are two views on how to design the system of directors' obligation to the third party. One is that the directors held by the traditional company law only have obligations to the shareholders, mainly from three aspects of ownership, incomplete contract, residual claim right to support this view. With the development of company law, this viewpoint can be divided into three minor viewpoints: directors only have obligations to shareholders as a whole, directors have obligations to individual shareholders under special circumstances, and directors have obligations to the total number of present and future shareholders. The other is the view that directors have obligations to shareholders and third parties outside shareholders since the 20th century with the development of theories such as social responsibility theory and the serious social problems brought about by the tide of large-scale acquisitions. The proponents of this view mainly refute the argument that the ownership of the company is only owned by the shareholders and that the contract between the third party and the company is incomplete. The author holds that the director's obligation to the third party outside the shareholders is an important way to realize the corporate social responsibility. This viewpoint can be subdivided into that the director has the obligation to the third party outside the specific shareholder under certain circumstances, and the director has the right to consider the interests of the third party outside the shareholder. Directors must consider three minor points of view of the interests of third parties other than shareholders. Based on the analysis of the above views, this paper puts forward the reconstruction of directors' obligation to the third party. First of all, the author thinks that the understanding of the purpose of the company is the basis of constructing the system of directors' obligation to the third party. Secondly, through the interpretation of the "company interest" which is closely related to the purpose of the company, we can achieve the effect of protecting the interests of the third party, that is, the corporate interest is the way to construct a perfect system of directors' obligation to the third party. Thirdly, this paper also discusses the reasons from four aspects: corporate ownership, residual claim, professional division of labor and ease of operation. The conclusion of this paper is that the object of directors' obligations is investors (shareholders and creditors), directors have obligations to shareholders and creditors only, and based on the completeness of corporate logic, This paper holds that the indirect obligation should be adopted in the nature of the director's obligation to the third party. Finally, according to the provisions of Company Law, bankruptcy Law, Securities Law and listed Company Governance Code, this paper points out that the current system of our country limits the scope of directors' obligations to companies and shareholders. For the interests of the third party outside the shareholders only require directors to pay attention to "simultaneously" in the guidance document, this paper thinks that it is reasonable, but the protection of the third party outside the shareholders is not sufficient. Therefore, this paper puts forward some suggestions on the construction of the system of directors' obligation to the third party from three aspects: the subject, the standard and the object.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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