优先股股东权益保护论
发布时间：2018-08-23 13:59
【摘要】：优先股是国际通行的股份种类,具有与普通股同等重要的地位,它是股份公司发行的,在公司有关财产利益等分配过程中享有优先权的股份。市场经济发达的西方国家中只要实行股份制度都对优先股进行了相关的规定,普遍承认并且采用了优先股种类。我国现行公司法没有对优先股进行直接的规定,也没有否定其存在的可能,并将该种类得以出现的权力赋予国务院。作为一种重要的投、融资工具,优先股以其其收益固定、风险低的特点,吸引着不愿冒险的中小投资者和机构投资者。对于公司而言,发行优先股融资不必像债券一样还本付息,在一定程度上可以减轻公司的资金压力,而且增强了公司融资的灵活性,拓宽了公司融资的渠道。目前我国正处于市场经济的初级阶段,股份制度还不完善,在我国公司股份制改革的过程中,优先股制度没有被得到充分的利用。虽然我国现行公司法第132条对其他种类的股票有了一个概括性的表述,然而其他种类并没有明确的提出是否优先股,而优先股在我国的实践中并没有获得相应的效果,反而在公司股改中逐步的取消了优先股。 鉴于优先股的重要意义,以及我国法律在这方面的缺失,本文选取了优先股为研究对象,通过对优先股的研究,指出我国优先股在我国发展过程中存在的法律困境,提出确立和完善我国优先股股东权益保护的法律构想。 本文除导论和结语外,共分四部分： 第一部分优先股股东权益保护的的制度价值 该部分首先从优先股股东权益保护的基本理论出发,阐明优先权制度的价值,同时对优先股股东权进行探析,在对股东权性质进行研究的基础上,认为股东权自身的性质不但不排斥优先股股东享有优先权利,反而为股东权的差异性提供了依据。其次,分析为什么要对优先股股东权益进行法律保护,即优先股股东权益保护的原因分析,优先股制度的设置是对公司中中小股东合法权益保护的有力补充。优先股股东无法获得公司法对债权人的法律保护和救济。最后为了更好的对优先股进行保护,必须明确保护的优先权应该有：1.利益分配请求权,这是优先股股东需要保护的最为重要的一项权利。也是最能体现其特色的；2.剩余财产分配请求权当公司解散进行清算时,如果有剩余财产,该类股东先于普通股股东分配剩余财产的权利；3.表决权股东就股东会议的议案的决议权；4.偿还权,股东要求公司或者公司按章程规定的期限及条件决定收回股票时,股东请求公司返还股款的权利。 第二部分优先股股东权益保护面临的法律问题 该部分可以分为两个大问题,第一个问题是优先股股东权益保护的冲突问题,认为这种冲突包含优先股股东权益和普通股东权益之冲突即利润分配中的利益冲突和公司资本重组中的利益冲突；优先股股东权益内部之间的冲突,主要是累积优先股和非累积优先股之间以及参与优先股与非参与优先股之间的冲突。普通股股东与优先股股东的利益冲突主要是源于优先股的特有性质,分配利润以及在清算过程中受偿的优先性。 第二个问题是优先股股东权益保护面临的其他法律问题,即高位优先股股东权益与优先股股东权益之间关系问题、优先股股东权益保护对中小股东的利益平衡问题。公司发行更高优先权股票和优先股股东的关系,为了保护优先股股东的权益,为防止已发行优先股的持有人的优先权利因公司发行优先级别相同或这更高的优先股而被稀释甚至实质降级,法律一般赋予优先股股东两项权利,即优先认购权和对于优先利益相关事项的表决权。 第三部分优先股股东权益保护法律困难之解决 本部分针对当下优先股股东权益保护中出现的法律问题,从解决优先股股东权的冲突开始进行研究,认为解决这些冲突可以通过表决权制度设计解决冲突和通过异议股东股份收买制度解决冲突的途径来实现。优先股主要存在于不愿冒险的中小投资者手中,因而,优先股与中小股东权益保护之间存在着密切的关系,优先股可以作为中小股东权利保护的一项积极性救济措施看,从根本上调整大股东与中小股东之间的利益分配,从而减弱大股东损害中小股东利益的动机。在对优先股的相关研究中,优先股股东对累积未支付股利的优先权中的相关问题受到国内外学者的关注,笔者在对西方发达国家如美国,德国的相关研究与规定后,对国外做法之借鉴——取消累积优先股股利行为。 第四部分确立和完善我国优先股股东权益保护的法律构想 确立我国优先股股东权益的法律保护制度由于我国目前的法律在优先股股东权益保护方面缺乏有效的规定,所以笔者认为,在我国《公司法》中,加入对优先股股东的保护。可以使优先股股东的权益直接受到我国公司法的规定,使其存在具有法律上的依据,使其保护具有刚性。该部分包括,优先股股东权益保护的法律创新优先股股东权益保护的理念和体系；优先股股东权益保护的法律构想：1.应设立和完善优先股股东大会2.应保留优先股在一定条件下的表决权；优先股股东权利受到侵害的法律救济即信义义务与商业判断规则和涉及优先事项表决权异议股东股份回购请求权；最后提出优先股股东权益保护的法律构建。 本文可能的创新点有： 1.优先股股东权益保护冲突的分析,从优先股股东与普通股股东之间以及优先股股东之间的冲突,即优先股股东内部与外部两个方面的冲突进行阐述,尤其是优先股内部权益冲突的解决是本文的一个亮点。 2.优先股股东权益保护的法律理念的创新,分别从优先股股东权益保护的理念和体系两个方面对法律理念进行了尝试性探索,提出平衡冲突兼顾效率的解决原则。 3.有关我国优先股股东权益保护的法律构想,认为我国现行公司法应该对优先股做出相应的规定,为优先股的实现提供法律的支持,其次,优先股股东权益受到侵害时的法律救济也是目前学界研究比较少的方面,本文从一个角度对侵犯优先股股东权益的法律救济提出了自己的看法。
[Abstract]:Preferred stock is a kind of stock which is popular in the world and has the same important status as common stock. It is issued by a joint stock company and enjoys the priority in the process of distributing related property interests. As an important investment and financing tool, preferred stock attracts medium and small investors and investors who are unwilling to take risks because of its fixed income and low risk. Institutional investors. For a company, issuing preferred stock financing does not have to pay the principal and interest like bonds. To a certain extent, it can alleviate the company's financial pressure, enhance the company's financing flexibility and broaden the company's financing channels. The preferred stock system has not been fully utilized in the process of the reform of the company's stock system. Although Article 132 of China's current company law has a general description of other types of stocks, other types of stocks have not been clearly put forward whether they are preferred stocks, and preferred stocks in China's practice has not achieved the corresponding results, instead in The preferred shares were gradually abolished in the company's share reform.
In view of the importance of preferred shares and the lack of our law in this respect, this paper selects preferred shares as the research object, points out the legal dilemma existing in the development of preferred shares in China, and puts forward the legal concept of establishing and improving the protection of shareholders'rights and interests of preferred shares in China.
In addition to the introduction and conclusion, this article is divided into four parts.
The first part is the institutional value of the protection of shareholders' rights and interests of preferred stock.
This part begins with the basic theory of the protection of the rights and interests of the shareholders of preferred shares, clarifies the value of the priority system, and at the same time makes an analysis of the shareholders'rights of preferred shares. On the basis of the study of the nature of shareholders' rights, it holds that the nature of shareholders'rights does not exclude the shareholders of preferred shares from enjoying the priority rights, but provides for Secondly, it analyzes why we should protect the rights and interests of the shareholders of preferred shares, that is, the reasons for the protection of the rights and interests of the shareholders of preferred shares. In order to protect the preferred shares, we must make it clear that the priority of protection should be: 1. the right of claim for benefit distribution, which is the most important right that the preferred shareholders need to protect. The right of a general shareholder to distribute surplus property; 3. the right of a voting shareholder to make a resolution on the motion of the shareholders'meeting; 4. the right of repayment, when the shareholder requests the company or the company to decide to withdraw the shares according to the time limit and conditions stipulated in the articles of association, the shareholder's right to request the company to return the shares.
The second part is about the legal problems faced by the protection of shareholders' rights and interests of preferred stock.
This part can be divided into two major problems. The first problem is the conflict between the rights and interests of the preferred shareholders, which includes the conflicts between the rights and interests of the preferred shareholders and those of the ordinary shareholders, namely, the conflicts of interests in the profit distribution and the conflicts of interests in the company's capital reorganization. It is the conflict between accumulated preferred stock and non-accumulated preferred stock and between participating preferred stock and non-participating preferred stock.
The second problem is the other legal problems faced by the protection of the rights and interests of the preferred shareholders, that is, the relationship between the rights and interests of the high preferred shareholders and the preferred shareholders, and the balance between the interests of the minority shareholders and the protection of the rights and interests of the preferred shareholders. In order to prevent the priority rights of the holders of the issued preferred shares from being diluted or even substantially degraded by issuing the same or higher preferred shares, the law generally grants two rights to the shareholders of the preferred shares, namely, the right to subscribe first and the right to vote on the matters related to the priority interests.
The third part is to solve the legal difficulties of the protection of shareholders' rights and interests of preferred stock.
This part aims at the legal problems existing in the protection of the rights and interests of the shareholders of the preferred shares at present. It begins with the study of the conflict of the rights of the preferred shares. It is believed that the solution to these conflicts can be achieved through the design of the voting rights system and the solution of the conflict through the system of objecting shareholders'share purchase. In the hands of risk-taking small and medium-sized investors, therefore, there is a close relationship between preferred shares and the protection of the rights and interests of minority shareholders. As a positive remedy measure for the protection of the rights of minority shareholders, preferred shares can fundamentally adjust the distribution of interests between large shareholders and small and medium-sized shareholders, thereby reducing the damage of large shareholders to the interests of minority shareholders In the related research of preferred stock, scholars at home and abroad have paid close attention to the related issues of the preferred stock shareholders'preemption of accumulating unpaid dividends. After researching and stipulating the western developed countries such as the United States and Germany, the author draws lessons from the foreign practice of abolishing the behavior of accumulating preferred dividends.
The fourth part is the legal conception of establishing and improving the protection of shareholders' rights and interests in China's preferred stock.
Establishing the legal protection system of the shareholders'rights and interests of the preferred shares in China is due to the lack of effective provisions in China's current law on the protection of the rights and interests of the preferred shareholders, so the author believes that the protection of the preferred shareholders should be added to the Company Law of China, so that the rights and interests of the preferred shareholders can be directly regulated by the Company Law of China and make it exist. This part includes the legal innovation of the concept and system of the protection of the rights and interests of the shareholders of preferred shares; the legal conception of the protection of the rights and interests of the shareholders of preferred shares: 1. the general meeting of the shareholders of preferred shares should be established and improved; 2. the voting rights of the preferred shares should be retained under certain conditions; The legal remedy for the infringement of the rights of the preemptive shareholders is the fiduciary duty and commercial judgment rules, and the right of objection to the right of voting on the priority of the shareholders to repurchase their shares.
The possible innovations of this paper are:
1. The analysis of the conflict of the protection of the rights and interests of the preferred shareholders, from the conflict between the preferred shareholders and the ordinary shareholders and between the preferred shareholders, that is, the conflict between the internal and external aspects of the preferred shareholders, especially the solution of the conflict of the rights and interests of the preferred shareholders is a highlight of this paper.
2. The innovation of the legal concept of the protection of the rights and interests of the preferred shareholders is explored from the two aspects of the concept and system of the protection of the rights and interests of the preferred shareholders, and the principle of balancing conflicts and giving consideration to efficiency is put forward.
3. Concerning the legal conception of the protection of the shareholders'rights and interests of the preferred shares in our country, the author thinks that the current company law should make corresponding provisions for the preferred shares, and provide legal support for the realization of the preferred shares. Secondly, the legal remedy for the infringement of the rights and interests of the preferred shares is also less studied by the academic circles at present. The legal remedies for the rights and interests of preferred shareholders are put forward.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2199280
[Abstract]:Preferred stock is a kind of stock which is popular in the world and has the same important status as common stock. It is issued by a joint stock company and enjoys the priority in the process of distributing related property interests. As an important investment and financing tool, preferred stock attracts medium and small investors and investors who are unwilling to take risks because of its fixed income and low risk. Institutional investors. For a company, issuing preferred stock financing does not have to pay the principal and interest like bonds. To a certain extent, it can alleviate the company's financial pressure, enhance the company's financing flexibility and broaden the company's financing channels. The preferred stock system has not been fully utilized in the process of the reform of the company's stock system. Although Article 132 of China's current company law has a general description of other types of stocks, other types of stocks have not been clearly put forward whether they are preferred stocks, and preferred stocks in China's practice has not achieved the corresponding results, instead in The preferred shares were gradually abolished in the company's share reform.
In view of the importance of preferred shares and the lack of our law in this respect, this paper selects preferred shares as the research object, points out the legal dilemma existing in the development of preferred shares in China, and puts forward the legal concept of establishing and improving the protection of shareholders'rights and interests of preferred shares in China.
In addition to the introduction and conclusion, this article is divided into four parts.
The first part is the institutional value of the protection of shareholders' rights and interests of preferred stock.
This part begins with the basic theory of the protection of the rights and interests of the shareholders of preferred shares, clarifies the value of the priority system, and at the same time makes an analysis of the shareholders'rights of preferred shares. On the basis of the study of the nature of shareholders' rights, it holds that the nature of shareholders'rights does not exclude the shareholders of preferred shares from enjoying the priority rights, but provides for Secondly, it analyzes why we should protect the rights and interests of the shareholders of preferred shares, that is, the reasons for the protection of the rights and interests of the shareholders of preferred shares. In order to protect the preferred shares, we must make it clear that the priority of protection should be: 1. the right of claim for benefit distribution, which is the most important right that the preferred shareholders need to protect. The right of a general shareholder to distribute surplus property; 3. the right of a voting shareholder to make a resolution on the motion of the shareholders'meeting; 4. the right of repayment, when the shareholder requests the company or the company to decide to withdraw the shares according to the time limit and conditions stipulated in the articles of association, the shareholder's right to request the company to return the shares.
The second part is about the legal problems faced by the protection of shareholders' rights and interests of preferred stock.
This part can be divided into two major problems. The first problem is the conflict between the rights and interests of the preferred shareholders, which includes the conflicts between the rights and interests of the preferred shareholders and those of the ordinary shareholders, namely, the conflicts of interests in the profit distribution and the conflicts of interests in the company's capital reorganization. It is the conflict between accumulated preferred stock and non-accumulated preferred stock and between participating preferred stock and non-participating preferred stock.
The second problem is the other legal problems faced by the protection of the rights and interests of the preferred shareholders, that is, the relationship between the rights and interests of the high preferred shareholders and the preferred shareholders, and the balance between the interests of the minority shareholders and the protection of the rights and interests of the preferred shareholders. In order to prevent the priority rights of the holders of the issued preferred shares from being diluted or even substantially degraded by issuing the same or higher preferred shares, the law generally grants two rights to the shareholders of the preferred shares, namely, the right to subscribe first and the right to vote on the matters related to the priority interests.
The third part is to solve the legal difficulties of the protection of shareholders' rights and interests of preferred stock.
This part aims at the legal problems existing in the protection of the rights and interests of the shareholders of the preferred shares at present. It begins with the study of the conflict of the rights of the preferred shares. It is believed that the solution to these conflicts can be achieved through the design of the voting rights system and the solution of the conflict through the system of objecting shareholders'share purchase. In the hands of risk-taking small and medium-sized investors, therefore, there is a close relationship between preferred shares and the protection of the rights and interests of minority shareholders. As a positive remedy measure for the protection of the rights of minority shareholders, preferred shares can fundamentally adjust the distribution of interests between large shareholders and small and medium-sized shareholders, thereby reducing the damage of large shareholders to the interests of minority shareholders In the related research of preferred stock, scholars at home and abroad have paid close attention to the related issues of the preferred stock shareholders'preemption of accumulating unpaid dividends. After researching and stipulating the western developed countries such as the United States and Germany, the author draws lessons from the foreign practice of abolishing the behavior of accumulating preferred dividends.
The fourth part is the legal conception of establishing and improving the protection of shareholders' rights and interests in China's preferred stock.
Establishing the legal protection system of the shareholders'rights and interests of the preferred shares in China is due to the lack of effective provisions in China's current law on the protection of the rights and interests of the preferred shareholders, so the author believes that the protection of the preferred shareholders should be added to the Company Law of China, so that the rights and interests of the preferred shareholders can be directly regulated by the Company Law of China and make it exist. This part includes the legal innovation of the concept and system of the protection of the rights and interests of the shareholders of preferred shares; the legal conception of the protection of the rights and interests of the shareholders of preferred shares: 1. the general meeting of the shareholders of preferred shares should be established and improved; 2. the voting rights of the preferred shares should be retained under certain conditions; The legal remedy for the infringement of the rights of the preemptive shareholders is the fiduciary duty and commercial judgment rules, and the right of objection to the right of voting on the priority of the shareholders to repurchase their shares.
The possible innovations of this paper are:
1. The analysis of the conflict of the protection of the rights and interests of the preferred shareholders, from the conflict between the preferred shareholders and the ordinary shareholders and between the preferred shareholders, that is, the conflict between the internal and external aspects of the preferred shareholders, especially the solution of the conflict of the rights and interests of the preferred shareholders is a highlight of this paper.
2. The innovation of the legal concept of the protection of the rights and interests of the preferred shareholders is explored from the two aspects of the concept and system of the protection of the rights and interests of the preferred shareholders, and the principle of balancing conflicts and giving consideration to efficiency is put forward.
3. Concerning the legal conception of the protection of the shareholders'rights and interests of the preferred shares in our country, the author thinks that the current company law should make corresponding provisions for the preferred shares, and provide legal support for the realization of the preferred shares. Secondly, the legal remedy for the infringement of the rights and interests of the preferred shares is also less studied by the academic circles at present. The legal remedies for the rights and interests of preferred shareholders are put forward.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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