我国董事表决权排除制度研究
发布时间：2018-09-14 09:52
【摘要】：董事表决权排除制度是确保董事决议公平的一项重要法律制度。《公司法》第124条规定：董事与董事会所决议事项所涉及的企业有关联关系的,该董事不得就此事项行使表决权,从而标志着董事表决权排除制度在我国的确立。将董事表决权排除制度写入法条中,无疑是在立法层面对董事权利的极大完善和发展,也是加快我国经济体制改革的重大举措。这一制度对于避免董事滥用公司权利、篡夺公司机会、优化公司治理结构、保护中小股东利益等方面均有十分积极的作用。但就我国董事表决权排除制度的现有规定来看,在适用范围、申请与认定、救济方式等诸多方面还存在着许多的不足与缺陷。为使董事表决权排除制度更好地在实践中进行运用,本文试图通过对董事表决权排除制度进行系统的研究并提出一些富有针对性和操作性的具体建议。 本文共分五部分。 第一部分,首先从董事表决权的内涵入手,对董事表决权排除的内涵进行了诠释,并从适用主体、适用情形、共益性、适用强制性、暂时性和表决效力的待定性等几个方面对其特征展开分析,进而着重阐明了董事表决权排除制度的法律价值和法理依据。 第二部分,在总结、梳理我国董事表决权排除制度发展历程的基础上,从适用范围、决定主体、“关联关系”的界定、申请条件、救济方式等不同角度系统分析了我国在这一制度上的缺陷和不足,从而为下文展开讨论奠定必要的理论基础。 第三部分,结合我国今后公司法可能采取开放式公司与封闭式公司分类模式的趋势,提出应将董事表决权排除制度扩大适用于封闭式公司,尤其是家族式企业和国有企业,并主张借鉴国外先进经验对关联关系进行合理的判定,提出应采取具体列举和一般概括相结合的方式对适用条件予以合理的界定：即在对自我交易、篡夺公司机会、提供担保等常见情形进行列举规定的同时,加入兜底条款,作为判断是否排除董事表决权的标准。 第四部分,试图在董事表决权排除制度的申请条件和认定程序上提出具有可操作性的建议,认为只要决议事项对公司或利益相关者的利益造成或可能造成侵害,公司以及利益相关者均可以对关联董事的表决权提出排除的申请,并由董事会作为认定董事表决权是否应予排除的主体。在具体实施程序上则从通知、审查到公示等诸方面都提出了自己的见解。 第五部分,在救济机制构建方面,笔者认为,应针对关联董事的表决权未排除以及错误排除了与决议事项无关的董事表决权两种情况,分别采取不同的处理方式,并构建与当事人地位相契合的举证责任制度,以健全董事表决权排除的法律救济机制,充分保护董事及相关利益者的合法权益。
[Abstract]:The system of exclusion of directors' voting rights is an important legal system to ensure the fairness of directors' resolutions. Article 124 of the Company Law stipulates that a director shall not exercise his voting rights on a matter in which a director has a related relationship with an enterprise involved in the matter decided by the board of directors. This marks the establishment of the system of exclusion of directors' voting rights in our country. It is undoubtedly a great improvement and development of directors' rights on the legislative level to write the system of exclusion of directors' voting rights into the articles of law. It is also an important measure to speed up the reform of China's economic system. This system plays an active role in avoiding directors abusing company rights usurping corporate opportunities optimizing corporate governance structure protecting the interests of minority shareholders and so on. However, there are still many deficiencies and defects in the scope of application, application and confirmation, relief methods and so on. In view of the existing provisions of the exclusion system of directors' voting rights in our country, there are still many shortcomings and defects. In order to make directors' voting right exclusion system be better applied in practice, this paper attempts to make a systematic study of directors' voting right exclusion system and puts forward some specific suggestions which are full of pertinence and maneuverability. This paper is divided into five parts. The first part, starting with the connotation of directors' voting rights, explains the connotation of directors' voting rights exclusion, and explains the connotation of directors' voting rights exclusion. This paper analyzes the characteristics of temporary and pending voting effect, and expounds the legal value and legal basis of the exclusion system of directors' voting rights. The second part, on the basis of summing up and combing the developing course of the system of exclusion of directors' voting rights, determines the subject, the definition of "related relationship", and the conditions of application from the scope of application. This paper systematically analyzes the defects and deficiencies in this system from different angles, such as relief methods, and thus lays the necessary theoretical foundation for the discussion below. The third part, combined with the trend that the company law of our country may adopt the classification mode of open company and closed company in the future, put forward that the exclusion system of directors' voting rights should be extended to the closed company, especially the family enterprise and the state-owned enterprise. It also advocates to use the advanced experience of foreign countries for reference to judge the relation reasonably, and puts forward that we should adopt concrete enumeration and general generalization to define the applicable conditions reasonably: namely, to usurp the opportunity of the company in self-dealing. While providing security and other common cases to list and stipulate, add the bottom clause as the criterion to judge whether to exclude the director's voting rights. In the fourth part, the author tries to put forward operable suggestions on the application condition and the cognizance procedure of the directors' voting right exclusion system, and holds that as long as the resolution matters cause or may cause infringement to the interests of the company or the stakeholders, Both the company and the stakeholders can apply for the exclusion of the voting rights of the associated directors, and the board of directors shall be the main body to determine whether the voting rights of the directors should be excluded. In the specific implementation procedures from the notification, review, publicity and other aspects of their own views. In the fifth part, in the aspect of the relief mechanism construction, the author thinks that the voting rights of the associated directors should be dealt with in different ways in view of the fact that the voting rights of the associated directors are not excluded and that the voting rights of the directors who have nothing to do with the resolution matters are excluded. In order to perfect the legal relief mechanism of the exclusion of directors' voting rights and fully protect the legitimate rights and interests of directors and related interests, the system of burden of proof is established in accordance with the status of the parties.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.291.91
本文编号：2242367
[Abstract]:The system of exclusion of directors' voting rights is an important legal system to ensure the fairness of directors' resolutions. Article 124 of the Company Law stipulates that a director shall not exercise his voting rights on a matter in which a director has a related relationship with an enterprise involved in the matter decided by the board of directors. This marks the establishment of the system of exclusion of directors' voting rights in our country. It is undoubtedly a great improvement and development of directors' rights on the legislative level to write the system of exclusion of directors' voting rights into the articles of law. It is also an important measure to speed up the reform of China's economic system. This system plays an active role in avoiding directors abusing company rights usurping corporate opportunities optimizing corporate governance structure protecting the interests of minority shareholders and so on. However, there are still many deficiencies and defects in the scope of application, application and confirmation, relief methods and so on. In view of the existing provisions of the exclusion system of directors' voting rights in our country, there are still many shortcomings and defects. In order to make directors' voting right exclusion system be better applied in practice, this paper attempts to make a systematic study of directors' voting right exclusion system and puts forward some specific suggestions which are full of pertinence and maneuverability. This paper is divided into five parts. The first part, starting with the connotation of directors' voting rights, explains the connotation of directors' voting rights exclusion, and explains the connotation of directors' voting rights exclusion. This paper analyzes the characteristics of temporary and pending voting effect, and expounds the legal value and legal basis of the exclusion system of directors' voting rights. The second part, on the basis of summing up and combing the developing course of the system of exclusion of directors' voting rights, determines the subject, the definition of "related relationship", and the conditions of application from the scope of application. This paper systematically analyzes the defects and deficiencies in this system from different angles, such as relief methods, and thus lays the necessary theoretical foundation for the discussion below. The third part, combined with the trend that the company law of our country may adopt the classification mode of open company and closed company in the future, put forward that the exclusion system of directors' voting rights should be extended to the closed company, especially the family enterprise and the state-owned enterprise. It also advocates to use the advanced experience of foreign countries for reference to judge the relation reasonably, and puts forward that we should adopt concrete enumeration and general generalization to define the applicable conditions reasonably: namely, to usurp the opportunity of the company in self-dealing. While providing security and other common cases to list and stipulate, add the bottom clause as the criterion to judge whether to exclude the director's voting rights. In the fourth part, the author tries to put forward operable suggestions on the application condition and the cognizance procedure of the directors' voting right exclusion system, and holds that as long as the resolution matters cause or may cause infringement to the interests of the company or the stakeholders, Both the company and the stakeholders can apply for the exclusion of the voting rights of the associated directors, and the board of directors shall be the main body to determine whether the voting rights of the directors should be excluded. In the specific implementation procedures from the notification, review, publicity and other aspects of their own views. In the fifth part, in the aspect of the relief mechanism construction, the author thinks that the voting rights of the associated directors should be dealt with in different ways in view of the fact that the voting rights of the associated directors are not excluded and that the voting rights of the directors who have nothing to do with the resolution matters are excluded. In order to perfect the legal relief mechanism of the exclusion of directors' voting rights and fully protect the legitimate rights and interests of directors and related interests, the system of burden of proof is established in accordance with the status of the parties.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.291.91
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