对服刑人员是否能够担任董事的研究

发布时间：2018-08-06 07:54

【摘要】：服刑人员作为一个民事主体,由于其权利主体处于羁押服刑过程中,丧失了大部分人身自由,受到刑罚的限制,导致其所享有的民事权利与普通公民有所不同,具有诸多特殊性。我国监狱刑罚发展趋势是一个不断重视服刑人员权利的过程,这个过程表明了我国刑罚不断实现文明化、法治化;但就民事权利的研究,目前看来还不是非常成熟。对于服刑人员具体享有哪些民事权利,近年来已有一些文章对此进行了论述,但是对于服刑人员在公司中享有的权利,我国现行法律对此规定不详,理论界对此也少有讨论。当前我国《公司法》只是从行为能力和一些消极方面对董事资格进行了规定。而现实中,董事因违反刑法而被羁押的情况常有发生,亦有一些服刑中的人员依然具有公司董事身份的情况。然而,现实中服刑人员由于其特殊性往往不能胜任公司董事,并产生了很多问题,影响到了公司的正常运行和健康发展。鉴于社会经济的不断发展,我认为有必要对服刑人员是否能够担任公司董事进行研究,因此本文以此为题,意图完善立法,解决现实矛盾。本文包括三章和结论四个部分: 第一章通过对现实中一则案例进行剖析,发现由于现有立法对服刑人员是否能够担任公司董事规定不详,导致现实中产生许多矛盾难以解决,直接影响到了公司中的各方利益和公司的正常运营,并导致公司陷入僵局。本章分为两个部分,第一部分是介绍案例,第二部分从案例中找出问题,用以下文进行逐个分析。第二章通过对董事的法律地位进行分析并列举比较外国相关立法,为后文得出结论进行理论铺垫。本章包括七个部分。第一部分是董事会的性质;第二部分董事会议的形式与通知;第三部分是董事资格;第四部分是董事与公司的关系;第五部分是董事的权利;第六部分是董事的义务与责任;第七部分是对本章的小结。第三章是对我国当前监狱管理制度进行介绍。目的是想通过比照我国现行监狱对服刑人员的管理制度,从我国现实角度分析服刑人员是否能够担任公司董事。本章共分两个部分,第一部分是监狱的会见制度,第二部分是监狱的通讯通信制度。通过第二章和第三章的分析,最终得出结论,并对完善我国立法提出建议,完善相关制度。
[Abstract]:As a civil subject, prisoners lose most of their personal freedom because their rights subject is in the process of serving their sentences in custody, which results in their civil rights being different from those enjoyed by ordinary citizens. It has many particularities. The development trend of prison penalty in our country is a process of paying more attention to the rights of prisoners, which indicates that the penalty of our country is becoming civilized and governed by law. However, the research on civil rights is not very mature at present. In recent years, there have been some articles on the civil rights of the prisoners. However, the current law of our country does not know which civil rights the prisoners enjoy in the company, and there is little discussion about this in the theoretical circle. At present, the Company Law of our country only regulates the qualification of directors from the aspects of behavior capacity and some negative aspects. In reality, directors are often detained for violating the criminal law, and some serving sentences still have the status of company directors. However, because of its particularity, the prisoners are often unable to be the directors of the company, and many problems arise, which affect the normal operation and healthy development of the company. In view of the continuous development of social economy, I think it is necessary to study whether the prisoners can serve as directors of the company. This article includes three chapters and four parts of conclusion: the first chapter through the analysis of a case in reality, found that the existing legislation on whether the prisoners can serve as directors of the company is not clear. As a result, many contradictions are difficult to solve in reality, which directly affects the interests of all parties and the normal operation of the company, and leads to the deadlock of the company. This chapter is divided into two parts, the first part is to introduce the case, the second part is to find out the problem from the case and analyze it one by one with the following text. The second chapter through the analysis of the legal status of directors and enumerates and compares the relevant foreign legislation, for the following conclusions to pave the way for theory. This chapter consists of seven parts. The first part is the nature of the board of directors; the second part is the form and notice of the directors' meeting; the third part is the qualification of the directors; the fourth part is the relationship between the directors and the company; the fifth part is the rights of the directors; the sixth part is the duties and responsibilities of the directors; The seventh part is the summary of this chapter. The third chapter introduces the current prison management system in China. The purpose of this paper is to analyze whether the prisoners can serve as directors of the company through comparing the current prison management system of our country and analyzing whether the prisoners can serve as directors of the company from the point of view of our country's reality. This chapter is divided into two parts, the first part is the prison interview system, the second part is the prison communication system. Through the analysis of the second and third chapters, the conclusion is drawn, and some suggestions are put forward to perfect the legislation and the relevant system.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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