国美电器风波引发的公司法问题探析
发布时间：2018-08-10 18:09
【摘要】：从2008年11月17日因黄光裕被刑拘而发生,至2011年3月9日随着陈晓辞职而尘埃落定的国美电器控制权之争,给我国公司法研究提出了许多新课题,本文限于篇幅和笔者的能力,仅对这一风波引发的以下三个问题进行了探讨。 一、如何确认公司章程的合法有效。首先,阐释对公司章程概念、作用、特点等基本问题的认识。其次,分析公司章程的性质,笔者认为公司章程在公司设立阶段的性质是契约,在股东或发起人之间产生约束力;公司成立后契约上升为公司的自治规则。因此应动态分析公司章程在公司不同阶段的性质。第三,具体分析股份有限公司章程的法律效力,着重分析章程无效的法律后果及救济方式。运用公司章程效力的相关理论分析国美电器公司章程,提出其中令人存疑的问题,以及在增补董事上的违规操作。认为我国公司法,应对公司章程效力的事先认定以及无效的事后救济给与同样的重视。 二、如何确保大股东在董事会中的合理席位。一般大股东凭借资本多数决原则在董事会中都占有一定席位,但存在大股东失去公司的控制权、公司陷入内部人控制的特殊情况。基于此,从大股东在董事会中失去控制权的特殊情况出发,分析我国现行公司法对弱势大股东权益保护不力的现状,建议增加保护条款;同时提出公司法应对创始股东予以特殊保护的立法建议,这种特殊保护可以是公司法在特殊情况下赋予创始股东多重投票权,或建立双重股权机制。 三、如何界定经理义务。经理义务随着公司治理结构的不断发展而变化,依据不同的分类方法可分为在职义务和离职义务或者基本义务、特定义务和独有义务等,但经理所承担义务的法理依据是基本相同的。之后分别用公司社会责任理论和人力资本理论分析经理义务。 本文的结论是:公司作为市场经济最重要的主体,其生命就在于迅速适应时代的发展而变化;公治理结构是动态的,应与时俱变;而反映和记录这种变化的公司法也应与时俱进,不断修改完善。 本文在以下几方面略有新意:以新近发生的国美电器风波为选题,运用商法知识剖析这个鲜活的案例,将中外公司法理论密切联系中国公司实际;提出保护弱势大股东和创始股东的观点,并且提出立法上的解决思路;引入公司社会责任理论和人力资本理论来评述经理义务,对传统的资本本位理论提出商榷。
[Abstract]:From November 17, 2008, when Huang Guangyu was held in criminal detention, to the dispute over the control rights of Gome, which was settled with Chen Xiao's resignation on March 9, 2011, it has put forward many new topics for the study of company law in our country. This paper is limited to space and the author's ability. Only the following three problems caused by this storm are discussed. First, how to confirm the validity of the articles of association. First of all, to explain the concept of the articles of association, role, characteristics and other basic issues. Secondly, analyzing the nature of the articles of association, the author thinks that the nature of the articles of association in the stage of establishment of the company is the contract, which is binding between the shareholders and the promoters; after the establishment of the company, the contract rises to the autonomy rule of the company. Therefore, the nature of the articles of association in different stages of the company should be dynamically analyzed. Thirdly, the legal effect of the articles of association is analyzed, and the legal consequences and remedies of the articles of association are emphatically analyzed. Based on the theory of the validity of the articles of association, this paper analyzes the articles of association of Gome Electric Co., Ltd., and puts forward some doubtful problems and the illegal operation on the addition of directors. The author thinks that the company law of our country should pay the same attention to the validity of the articles of association in advance and the relief after the invalidation. Second, how to ensure that the majority shareholders in the board of directors a reasonable seat. The majority shareholder holds a certain seat in the board of directors by virtue of the principle of capital majority decision, but there exists the special situation that the majority shareholder loses the control of the company and the company falls into the control of the insiders. Based on this, starting from the special situation of large shareholders losing control in the board of directors, this paper analyzes the current situation of weak protection of the rights and interests of weak large shareholders in the current company law of our country, and proposes to increase the protection clause; At the same time, it puts forward the legislative suggestion that the company law should give special protection to the founding shareholders. This special protection may be that the company law gives the founding shareholders more voting rights under the special circumstances, or establishes the dual equity mechanism. Third, how to define the duties of managers. The manager's obligation changes with the development of corporate governance structure. According to different classification methods, it can be divided into on-the-job obligation and separation obligation or basic obligation, specific obligation and unique obligation, etc. But the legal basis of the manager's obligation is basically the same. After that, the theory of corporate social responsibility and the theory of human capital are used to analyze the responsibility of managers. The conclusion of this paper is as follows: as the most important subject of the market economy, the life of the company lies in its rapid adaptation to the development of the times, the structure of public governance is dynamic, and it should change with the times. And the company law that reflects and records this kind of change also should keep pace with the times, revise and perfect constantly. This article has some new ideas in the following aspects: take the recent Gome electric appliance storm as the topic, use the knowledge of commercial law to analyze this fresh case, and closely connect the theory of Chinese and foreign company law with the practice of Chinese company; This paper puts forward the viewpoint of protecting the weak large shareholders and the founding shareholders, and puts forward the legislative solutions, introduces the theory of corporate social responsibility and human capital theory to comment on the manager's obligations, and discusses the traditional capital standard theory.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2175789
[Abstract]:From November 17, 2008, when Huang Guangyu was held in criminal detention, to the dispute over the control rights of Gome, which was settled with Chen Xiao's resignation on March 9, 2011, it has put forward many new topics for the study of company law in our country. This paper is limited to space and the author's ability. Only the following three problems caused by this storm are discussed. First, how to confirm the validity of the articles of association. First of all, to explain the concept of the articles of association, role, characteristics and other basic issues. Secondly, analyzing the nature of the articles of association, the author thinks that the nature of the articles of association in the stage of establishment of the company is the contract, which is binding between the shareholders and the promoters; after the establishment of the company, the contract rises to the autonomy rule of the company. Therefore, the nature of the articles of association in different stages of the company should be dynamically analyzed. Thirdly, the legal effect of the articles of association is analyzed, and the legal consequences and remedies of the articles of association are emphatically analyzed. Based on the theory of the validity of the articles of association, this paper analyzes the articles of association of Gome Electric Co., Ltd., and puts forward some doubtful problems and the illegal operation on the addition of directors. The author thinks that the company law of our country should pay the same attention to the validity of the articles of association in advance and the relief after the invalidation. Second, how to ensure that the majority shareholders in the board of directors a reasonable seat. The majority shareholder holds a certain seat in the board of directors by virtue of the principle of capital majority decision, but there exists the special situation that the majority shareholder loses the control of the company and the company falls into the control of the insiders. Based on this, starting from the special situation of large shareholders losing control in the board of directors, this paper analyzes the current situation of weak protection of the rights and interests of weak large shareholders in the current company law of our country, and proposes to increase the protection clause; At the same time, it puts forward the legislative suggestion that the company law should give special protection to the founding shareholders. This special protection may be that the company law gives the founding shareholders more voting rights under the special circumstances, or establishes the dual equity mechanism. Third, how to define the duties of managers. The manager's obligation changes with the development of corporate governance structure. According to different classification methods, it can be divided into on-the-job obligation and separation obligation or basic obligation, specific obligation and unique obligation, etc. But the legal basis of the manager's obligation is basically the same. After that, the theory of corporate social responsibility and the theory of human capital are used to analyze the responsibility of managers. The conclusion of this paper is as follows: as the most important subject of the market economy, the life of the company lies in its rapid adaptation to the development of the times, the structure of public governance is dynamic, and it should change with the times. And the company law that reflects and records this kind of change also should keep pace with the times, revise and perfect constantly. This article has some new ideas in the following aspects: take the recent Gome electric appliance storm as the topic, use the knowledge of commercial law to analyze this fresh case, and closely connect the theory of Chinese and foreign company law with the practice of Chinese company; This paper puts forward the viewpoint of protecting the weak large shareholders and the founding shareholders, and puts forward the legislative solutions, introduces the theory of corporate social responsibility and human capital theory to comment on the manager's obligations, and discusses the traditional capital standard theory.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前3条
1 刘志涛;我国上市公司控制权和控制权配置研究[D];吉林大学;2012年
2 韩智超;“国美之战”：公司实际控制权探究[D];吉林大学;2012年
3 赵雯;控股股东与董事会之间权利制约问题研究[D];复旦大学;2012年
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