股东会计帐簿查阅权制度研究
发布时间：2018-10-10 11:41
【摘要】： 随着公司治理理论与实践的不断发展完善,公司的所有权与经营权发生了分离,大大提高了公司经营决策的专业性和效率性,但却使得公司的经营管理权集中到了由少数专业人士所组成的公司经营者手中。凡是有权力的地方就容易被滥用,公司经营管理层的权利日益膨胀所带来的必然结果就是股东权利的日益萎缩。在这种情况下,如何使公司的所有者放心地把公司交给经营者就成为日益重要的课题。因此,促使股东会权力向董事会转移,与加强中小股东保护成为现代公司法并驾齐驱的两大任务。 加强中小股东保护,除了保留一些关于决定公司重大事项的权力给股东大会以外,强化中小股东的监督权也是一个行之有效的方案。为防止董事会结党营私、滥权舞弊,股东可依法采取事前的预防措施,也可以采取事后的救济措施,事前的预防措施,比如行使表决权；事后的救济措施,比如股东为了自己以及公司的利益而提起的各类诉讼。但是,不管是事前的预防措施,还是事后的救济措施,都是建立在股东对公司经营中的信息具有一定程度的知悉与了解的基础之上的,由此,股东知情权的产生就成为必然：股东知情权是股东行使其他权利的基础,没有信息的了解,就无法作出正确的判断和行为。 股东知情权是一个体系,虽然世界各国的公司立法对股东知情权体系的内容规定得不尽相同,但大致都包括了股东会计报告查阅权、股东会计账簿查阅权、检查人选任请求权、质询权等一些下位的权利。本文拟对股东知情权体系中的会计账簿查阅权制度作出详细的研究。 本研究在总体上分为导论、主体与结论三个大的部分。在导论中,笔者主要阐明了本文的研究背景、研究方法、资料综述,并引入了实践中的两个典型案例。主体分为三个部分。第一部分为股东会计账簿查阅权的基础理论。此部分主要论述股东会计账簿查阅权的概念、性质、范围以及制度价值与理论基础。第二部分为股东会计账簿查阅权的构成要件。此部分主要考察了美国、德国和日本等一些国家的立法规定,并借鉴这些世界上较为先进的公司立法得出股东查账权的适用类型和主客观要件。第三部分为股东会计账簿查阅权的行使程序及其救济。此部分主要探讨股东会计账簿查阅权如何行使,以及股东会计账簿查阅权遭受损害之后应该如何救济。结论部分对股东会计账簿查阅权的主体、对象范围、客观要件、主观要件、行使程序及救济作出总结,并对我国的会计账簿查阅权制度作出立法完善的建议。
[Abstract]:With the continuous development and perfection of corporate governance theory and practice, the ownership and management rights of the company have been separated, which has greatly improved the professionalism and efficiency of the company's management decisions. But the management of the company is concentrated in the hands of a small number of professionals. Where there is power, it is easy to be abused. The inevitable result of the expanding power of management is the shrinking of shareholders' rights. In this case, how to make the owner of the company safely give the company to the operator has become an increasingly important issue. Therefore, promoting the transfer of shareholders' power to the board of directors and strengthening the protection of minority shareholders have become two tasks of modern company law. In order to strengthen the protection of minority shareholders, it is also an effective scheme to strengthen the supervisory power of minority shareholders in addition to reserving some power to decide the important matters of the company to the shareholders' general meeting. In order to prevent the board of directors from forming a party for private gain and abuse of power, shareholders may, according to law, take preventive measures in advance, as well as remedial measures after the event, such as exercising the right to vote, and relief measures after the event. For example, shareholders for their own interests and the interests of the company and all kinds of litigation. However, whether it is preventive measures in advance or relief measures afterwards, they are based on the fact that shareholders have a certain degree of knowledge and understanding of the information in the operation of the company. The emergence of shareholders' right to know becomes inevitable: shareholders' right to know is the basis for shareholders to exercise other rights. Without the knowledge of information, they can not make correct judgment and behavior. The shareholders' right to know is a system. Although the company legislation of the world has different provisions on the content of the shareholders' right to know, it generally includes the right to inspect the accounting report of the shareholders, the right to inspect the accounting books of the shareholders, and the right of the inspector to choose and apply for appointment. The right to ask questions and other inferior rights. This paper intends to make a detailed study on the system of the right to consult accounting books in the system of shareholders' right to know. The study is divided into three parts: introduction, subject and conclusion. In the introduction, the author mainly expounds the research background, research methods, data summary, and introduces two typical cases in practice. The main body is divided into three parts. The first part is the basic theory of shareholder's right of checking accounting books. This part mainly discusses the concept, nature, scope, system value and theoretical basis of shareholder's right of checking accounting books. The second part is the constituent elements of shareholders'right of checking accounting books. This part mainly examines the legislative provisions of some countries, such as the United States, Germany and Japan, and draws on these more advanced company legislation in the world to obtain the applicable types and subjective and objective requirements of shareholders' audit rights. The third part is the procedure and relief of shareholders'right of checking accounting books. This part mainly discusses how to exercise the right of consulting accounting books of shareholders and how to remedy the damage of the right of consulting books of accounting books of shareholders. The conclusion part summarizes the main body, object scope, objective elements, subjective elements, exercise procedure and relief of the right to inspect the accounting books of shareholders, and makes some suggestions on the legislative perfection of the system of checking the books of accounting books in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2261632
[Abstract]:With the continuous development and perfection of corporate governance theory and practice, the ownership and management rights of the company have been separated, which has greatly improved the professionalism and efficiency of the company's management decisions. But the management of the company is concentrated in the hands of a small number of professionals. Where there is power, it is easy to be abused. The inevitable result of the expanding power of management is the shrinking of shareholders' rights. In this case, how to make the owner of the company safely give the company to the operator has become an increasingly important issue. Therefore, promoting the transfer of shareholders' power to the board of directors and strengthening the protection of minority shareholders have become two tasks of modern company law. In order to strengthen the protection of minority shareholders, it is also an effective scheme to strengthen the supervisory power of minority shareholders in addition to reserving some power to decide the important matters of the company to the shareholders' general meeting. In order to prevent the board of directors from forming a party for private gain and abuse of power, shareholders may, according to law, take preventive measures in advance, as well as remedial measures after the event, such as exercising the right to vote, and relief measures after the event. For example, shareholders for their own interests and the interests of the company and all kinds of litigation. However, whether it is preventive measures in advance or relief measures afterwards, they are based on the fact that shareholders have a certain degree of knowledge and understanding of the information in the operation of the company. The emergence of shareholders' right to know becomes inevitable: shareholders' right to know is the basis for shareholders to exercise other rights. Without the knowledge of information, they can not make correct judgment and behavior. The shareholders' right to know is a system. Although the company legislation of the world has different provisions on the content of the shareholders' right to know, it generally includes the right to inspect the accounting report of the shareholders, the right to inspect the accounting books of the shareholders, and the right of the inspector to choose and apply for appointment. The right to ask questions and other inferior rights. This paper intends to make a detailed study on the system of the right to consult accounting books in the system of shareholders' right to know. The study is divided into three parts: introduction, subject and conclusion. In the introduction, the author mainly expounds the research background, research methods, data summary, and introduces two typical cases in practice. The main body is divided into three parts. The first part is the basic theory of shareholder's right of checking accounting books. This part mainly discusses the concept, nature, scope, system value and theoretical basis of shareholder's right of checking accounting books. The second part is the constituent elements of shareholders'right of checking accounting books. This part mainly examines the legislative provisions of some countries, such as the United States, Germany and Japan, and draws on these more advanced company legislation in the world to obtain the applicable types and subjective and objective requirements of shareholders' audit rights. The third part is the procedure and relief of shareholders'right of checking accounting books. This part mainly discusses how to exercise the right of consulting accounting books of shareholders and how to remedy the damage of the right of consulting books of accounting books of shareholders. The conclusion part summarizes the main body, object scope, objective elements, subjective elements, exercise procedure and relief of the right to inspect the accounting books of shareholders, and makes some suggestions on the legislative perfection of the system of checking the books of accounting books in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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