对股份有限公司监查体制的考察
发布时间：2018-09-08 07:31
【摘要】：近年来，中国企业频繁违反法规，其中最引人注目的是“三鹿奶粉事件”。为何企业违法事件屡屡发生，笔者认为监察制度没有发挥应有的作用是一个很重要的原因。 全世界典型的股份有限公司监查体制分为两种，一种是英美法系的一元模式，另一种是大陆法系的二元模式。日本原本属于大陆法系的二元模式，平成14年（2002年），日本引入了来源于英美法系的委员会设置公司。由此，日本的股份有限公司可以采用两种监查体制中的任意一种。既可以选择保持原来的监事会设置公司不变，也可以选择转变为委员会设置公司。 将监事会设置公司和委员会设置公司进行比较，可以发现两者各有优劣。在人事权和报酬方面，委员会设置公司更加先进。但是在独任制、独立性等方面，委员会设置公司的监查委员比不上监事会设置公司的监事。 根据调查，转变为委员会设置公司的公司数量很少，但是有一些公司采用了监事会和独立董事并设这种革新的形式。笔者认为这种形式发扬了委员会设置公司和监事会设置公司的长处，避免了两者的短处。 中国根据2005年的公司法修改，强制性要求上市公司必须同时设立独立董事和监事会。而且，在董事会的下面还要设立监查委员会。于是，产生了监事会和监查委员会职权重复的问题。为了解决这一问题，笔者认为可以借鉴日本的监事会和独立董事并设公司的模式，，在董事会下面不设监查委员会，让监事会发挥监查的作用。 许多中国学者指出中国的监事会不起作用。为了让监事会更好地发挥监查机能，就必须解决独立性缺乏、法律制度不完备的问题。为此，笔者认为可以引入独立监事，提高监事会的独立性，并且充实监事的法律制度。
[Abstract]:In recent years, Chinese companies have frequently violated the law, most notably Sanlu milk powder incident. The author thinks that the supervision system does not play its due role is a very important reason why the enterprises break the law frequently. There are two typical supervision systems of joint stock limited companies in the world, one is the unitary mode of Anglo-American law system, the other is the dualistic mode of civil law system. Japan originally belonged to the dualistic mode of civil law system, which was formed for 14 years (2002), and introduced the commission setting up company from the common law system. As a result, Japanese companies can use either of two systems of surveillance. Either the original board of supervisors set up the company or the committee set up the company. By comparing the board of supervisors setting up company with the committee setting up company, we can find that the two have their own advantages and disadvantages. In terms of personal rights and remuneration, the Commission set up companies more advanced. However, in the aspect of sole-appointment and independence, the supervisory members of the committee setting up a company can not match the supervisors of the board of supervisors. According to the survey, a small number of companies have turned into committees, but some have adopted the innovative form of board of supervisors and independent directors. The author believes that this form develops the advantages of the committee setting up company and the supervisory board setting company, and avoids the disadvantages of both. According to the 2005 company law amendment, listed companies must set up independent directors and supervisory boards. In addition, there is also a supervisory committee under the board of directors. As a result, the board of supervisors and the issue of duplication of powers. In order to solve this problem, I think we can learn from the model of the board of supervisors and independent directors in Japan and set up a company, and do not set up a supervisory committee under the board of directors, and let the board of supervisors play the role of supervision and inspection. Many Chinese scholars point out that China's supervisory board does not work. In order to make the board of supervisors better exert the function of supervision, we must solve the problem of lack of independence and incomplete legal system. Therefore, I think we can introduce independent supervisors, improve the independence of the board of supervisors, and enrich the legal system of supervisors.
【学位授予单位】：上海外国语大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91;F276.6
本文编号：2229821
[Abstract]:In recent years, Chinese companies have frequently violated the law, most notably Sanlu milk powder incident. The author thinks that the supervision system does not play its due role is a very important reason why the enterprises break the law frequently. There are two typical supervision systems of joint stock limited companies in the world, one is the unitary mode of Anglo-American law system, the other is the dualistic mode of civil law system. Japan originally belonged to the dualistic mode of civil law system, which was formed for 14 years (2002), and introduced the commission setting up company from the common law system. As a result, Japanese companies can use either of two systems of surveillance. Either the original board of supervisors set up the company or the committee set up the company. By comparing the board of supervisors setting up company with the committee setting up company, we can find that the two have their own advantages and disadvantages. In terms of personal rights and remuneration, the Commission set up companies more advanced. However, in the aspect of sole-appointment and independence, the supervisory members of the committee setting up a company can not match the supervisors of the board of supervisors. According to the survey, a small number of companies have turned into committees, but some have adopted the innovative form of board of supervisors and independent directors. The author believes that this form develops the advantages of the committee setting up company and the supervisory board setting company, and avoids the disadvantages of both. According to the 2005 company law amendment, listed companies must set up independent directors and supervisory boards. In addition, there is also a supervisory committee under the board of directors. As a result, the board of supervisors and the issue of duplication of powers. In order to solve this problem, I think we can learn from the model of the board of supervisors and independent directors in Japan and set up a company, and do not set up a supervisory committee under the board of directors, and let the board of supervisors play the role of supervision and inspection. Many Chinese scholars point out that China's supervisory board does not work. In order to make the board of supervisors better exert the function of supervision, we must solve the problem of lack of independence and incomplete legal system. Therefore, I think we can introduce independent supervisors, improve the independence of the board of supervisors, and enrich the legal system of supervisors.
【学位授予单位】：上海外国语大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91;F276.6
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相关期刊论文 前4条
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本文编号：2229821
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