公司意思自治与法律规制
发布时间：2018-10-15 17:08
【摘要】：公司法中一个重要的原则就是公司意思自治。因此公司在很大程度上可以自己决定公司的事务,但正如个人的自由是建立在不影响他人自由的前提上一样,公司的意思自治也要受到一定的约束,即公司意思自治的规制。然而,何时需要自治,何时需要对公司进行规制,自治和规制之间的界限在哪里,是否可以统一到某个标准上来,这正是本文所要探寻的答案。本文结构上共分三章: 第一章公司意思自治概说。主要从公司法中意思自治的基础开始论述,具体又分两个部分进行分析,即公司自治的理论基础和经济基础。有了基础以后,笔者对我国公司法中公司章程自治的法律空间进行了梳理,得出某种程度上公司的意思自治就是公司章程的自治的结论。接着,笔者表明了对公司自治的态度,要充分尊重公司的意思自治。 第二章公司意思自治的规制。本部分主要论述了三个问题:1、公司治理的机制;2、强制性规范的边界;3、公司自治的司法限制。在谈到公司自治的规制时,我们只有先了解了公司治理的机制,包括公司治理的内涵、结构和模式以后,才能更深入地在立法层面和司法层面来具体的论述公司意思自治的法律规则。所以在介绍了公司治理的机制后,笔者对强制性规范的作用、类型化和如何实现进行的分析。然后,提出了公司自治不排除司法干预的论点,并就司法干预功能的变化作了具体阐述。 第三章公司意思自治与规制的统一。我国公司法中既有意思自治的部分,也有对意思自治进行规制的部分,然而经过分析,有些方面可以更为自治,如公司设立时的货币出资可由公司自己决定、股东出资的财产类别可以更多样化、股票发行的价格是否只能益价而不能低于票面发行、董事会的规模问题等;也有些部分可以更为规制。每部法律都有它的精神本质,自治和规制最好的动态平衡可以统一于公司的社会责任。
[Abstract]:An important principle in company law is the autonomy of company intention. Therefore, the company can decide its own affairs to a great extent, but just as the individual freedom is based on the premise of not affecting the freedom of others, the autonomy of the company's will is also subject to certain constraints, that is, the regulation of the autonomy of the company's will. However, when we need autonomy, when we need to regulate the company, where is the boundary between autonomy and regulation, and whether it can be unified to a certain standard, this is the answer this article is looking for. The structure of this paper is divided into three chapters: the first chapter is an overview of corporate autonomy. It is mainly discussed from the basis of autonomy of will in company law, which is divided into two parts, namely, the theoretical basis and economic basis of corporate autonomy. After having the foundation, the author combs the legal space of the autonomy of the articles of association in the company law of our country, and draws the conclusion that the autonomy of the company's will is the autonomy of the articles of association to some extent. Then, the author shows the attitude to corporate autonomy, to fully respect the autonomy of the meaning of the company. The second chapter is about the regulation of the autonomy of company's will. This part mainly discusses three issues: 1, the mechanism of corporate governance; 2, the boundary of mandatory norms; 3, the judicial limitations of corporate autonomy. When we talk about the regulation of corporate autonomy, we can only understand the mechanism of corporate governance first, including the connotation, structure and mode of corporate governance. In order to more in-depth in the legislative level and the judicial level to specifically discuss the legal rules of the autonomy of the meaning of the company. Therefore, after introducing the mechanism of corporate governance, the author analyzes the role, typology and implementation of mandatory norms. Then, it puts forward the argument that corporate autonomy does not exclude judicial intervention, and expounds the change of judicial intervention function. The third chapter is the unity of autonomy and regulation. In our company law, there are some parts of autonomy of will and part of regulation of autonomy of will. However, after analysis, some aspects can be more autonomous, for example, when the company is set up, the money contribution can be decided by the company itself. The types of property contributed by shareholders can be more diversified, whether the price of the stock issue can only benefit and not be lower than the par issue, the size of the board of directors, etc., and some parts can be regulated more. Every law has its spiritual essence. The best dynamic balance of autonomy and regulation can be unified with corporate social responsibility.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2273223
[Abstract]:An important principle in company law is the autonomy of company intention. Therefore, the company can decide its own affairs to a great extent, but just as the individual freedom is based on the premise of not affecting the freedom of others, the autonomy of the company's will is also subject to certain constraints, that is, the regulation of the autonomy of the company's will. However, when we need autonomy, when we need to regulate the company, where is the boundary between autonomy and regulation, and whether it can be unified to a certain standard, this is the answer this article is looking for. The structure of this paper is divided into three chapters: the first chapter is an overview of corporate autonomy. It is mainly discussed from the basis of autonomy of will in company law, which is divided into two parts, namely, the theoretical basis and economic basis of corporate autonomy. After having the foundation, the author combs the legal space of the autonomy of the articles of association in the company law of our country, and draws the conclusion that the autonomy of the company's will is the autonomy of the articles of association to some extent. Then, the author shows the attitude to corporate autonomy, to fully respect the autonomy of the meaning of the company. The second chapter is about the regulation of the autonomy of company's will. This part mainly discusses three issues: 1, the mechanism of corporate governance; 2, the boundary of mandatory norms; 3, the judicial limitations of corporate autonomy. When we talk about the regulation of corporate autonomy, we can only understand the mechanism of corporate governance first, including the connotation, structure and mode of corporate governance. In order to more in-depth in the legislative level and the judicial level to specifically discuss the legal rules of the autonomy of the meaning of the company. Therefore, after introducing the mechanism of corporate governance, the author analyzes the role, typology and implementation of mandatory norms. Then, it puts forward the argument that corporate autonomy does not exclude judicial intervention, and expounds the change of judicial intervention function. The third chapter is the unity of autonomy and regulation. In our company law, there are some parts of autonomy of will and part of regulation of autonomy of will. However, after analysis, some aspects can be more autonomous, for example, when the company is set up, the money contribution can be decided by the company itself. The types of property contributed by shareholders can be more diversified, whether the price of the stock issue can only benefit and not be lower than the par issue, the size of the board of directors, etc., and some parts can be regulated more. Every law has its spiritual essence. The best dynamic balance of autonomy and regulation can be unified with corporate social responsibility.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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，本文编号：2273223
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