董事守法经营义务研究
发布时间：2018-10-20 08:24
【摘要】：公司为了追求最大利益不惜铤而走险,进入新世纪以来,各种丑闻频发的状况使得社会对于企业守法经营的呼声日渐高涨,而董事与公司之间的委任关系决定了董事负有使公司守法经营的义务。董事的这一守法经营义务不仅包括决策守法、监督守法,还引伸出董事构建守法体制这一新型义务。对于该义务的研究在我国仍属新领域,学界涉及较少(研究角度也不同),相关立法空白较多(且大多为原则性规定,不具操作性),而国外对该义务的立法、司法实践则较为丰富，本文旨在通过对美、日两国案例和立法的梳理、对比和借鉴,结合我国实际情况,就该义务在我国公司法上的定位作进一步分析；在此基础上,对履行该义务所须注意的事项以及由此带来的责任追究问题做出探讨。全文分为五章： 第一章作为绪论,主要阐述研究背景,提出问题；论述董事守法经营义务内涵的发展,界定本文所涉及的相关概念；就与本文有关的国内外研究现状以及本文思路作综合性概述。 第二章回顾了美国法上判例对董事守法经营义务从否定到肯定的变革历程,以及《联邦组织犯罪量刑指南》所确立的守法程序机制(compliance programs)对公司治理的影响；详细分析了日本公司法上的守法体制构建义务,以及该守法体制与“两个内部控制系统”和注意义务的关系。 第三章在前一章的基础上,提出守法体制是内部控制的基础和保障,同时结合内部控制在我国上市公司实际执行不力的现实情况,指出其与相关法律法规欠缺衔接,因此应将内部控制中最基本的目标——守法经营作为一项董事的义务规定在公司法中,以便在改善该情况的同时加强董事责任追究；本文还通过对我国法律环境的剖析,认为董事守法经营义务成为第三种义务的可能性较大。 第四章就守法体制的构建框架和判断基准等要件作了规划和阐述,详细探讨了在运行守法体制时应当注意的三个问题(运行动力、信息披露、监事监督)。 第五章借案例分析指出在董事守法经营义务背景下,董事的作为义务相较于过往,有扩大的趋势：董事必须在决议时及时提出异议而不能弃权或者缺席会议,董事不能以“过错相抵”为由来逃避自己所负有的改善组织体质的义务,董事在事发后必须积极公开实情而不是消极隐瞒；否则,一旦公司因董事的上述不作为而发生损害,董事就要承担相应后果,为自己的“不作为”承担赔偿责任。
[Abstract]:In order to pursue the best interests, companies do not hesitate to take risks. Since entering the new century, the frequent occurrence of various kinds of scandals has made society's calls for enterprises to abide by the law increasingly strong. The appointment relationship between the directors and the company determines that the directors have the obligation to make the company abide by the law. The director's duty to abide by the law not only includes law-abiding decision-making, supervision and law-abiding, but also extends the new obligation of directors to construct a law-abiding system. The research on this obligation is still a new field in our country, the academic circle involves less (the research angle is also different), the relevant legislation blank is many (and mostly is the principle stipulation, does not have the operation), but the foreign legislation to this duty, The judicial practice is more abundant, this paper aims to further analyze the position of this obligation in the company law of our country by combing the cases and legislation of the United States and Japan, comparing and drawing lessons from the actual situation of our country. This paper discusses the matters to be paid attention to in fulfilling this obligation and the problems of accountability arising therefrom. The full text is divided into five chapters: the first chapter as an introduction, mainly elaborated the research background, raised the question, discussed the director abiding by the law management duty connotation development, defined the related concept which this article involves; This paper gives a comprehensive overview of the domestic and foreign research situation and the train of thought of this paper. The second chapter reviews the history of the change from negation to affirmation of the directors' operating obligations in the legal precedents of the United States, and the influence of the law-abiding procedural mechanism, (compliance programs), on corporate governance, which was established in the guidelines on sentencing of Federal Organization crimes. This paper analyzes in detail the obligation to construct the law-abiding system in Japanese company law, and the relationship between the law-abiding system and the "two internal control systems" and the duty of care. On the basis of the previous chapter, the third chapter puts forward that the law-abiding system is the basis and guarantee of internal control, and at the same time, it points out that the internal control system is not in line with the relevant laws and regulations in the light of the fact that the internal control is not effectively implemented in China's listed companies. Therefore, the most basic objective of internal control, law-abiding management, should be stipulated in the company law as a duty of directors, in order to improve the situation and strengthen the accountability of directors. It is more likely that the director's duty to abide by the law becomes the third obligation. The fourth chapter makes a plan and elaboration on the construction frame and judgment standard of the law-abiding system, and discusses in detail the three problems (running power, information disclosure, supervisor supervision) that should be paid attention to in the operation of law-abiding system. Chapter V points out that under the background of directors' law-abiding operating obligations, there is a tendency to expand the directors' obligations as compared with the past: directors must raise objections at the time of the decision and cannot abstain from the meeting or be absent from the meeting. A director cannot evade his obligation to improve the constitution of the organization on the grounds of "fault offset". The director must actively disclose the facts after the incident rather than conceal them passively; otherwise, once the company is harmed by the director's above-mentioned omission, Directors should bear the corresponding consequences and assume liability for their own omission.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2282591
[Abstract]:In order to pursue the best interests, companies do not hesitate to take risks. Since entering the new century, the frequent occurrence of various kinds of scandals has made society's calls for enterprises to abide by the law increasingly strong. The appointment relationship between the directors and the company determines that the directors have the obligation to make the company abide by the law. The director's duty to abide by the law not only includes law-abiding decision-making, supervision and law-abiding, but also extends the new obligation of directors to construct a law-abiding system. The research on this obligation is still a new field in our country, the academic circle involves less (the research angle is also different), the relevant legislation blank is many (and mostly is the principle stipulation, does not have the operation), but the foreign legislation to this duty, The judicial practice is more abundant, this paper aims to further analyze the position of this obligation in the company law of our country by combing the cases and legislation of the United States and Japan, comparing and drawing lessons from the actual situation of our country. This paper discusses the matters to be paid attention to in fulfilling this obligation and the problems of accountability arising therefrom. The full text is divided into five chapters: the first chapter as an introduction, mainly elaborated the research background, raised the question, discussed the director abiding by the law management duty connotation development, defined the related concept which this article involves; This paper gives a comprehensive overview of the domestic and foreign research situation and the train of thought of this paper. The second chapter reviews the history of the change from negation to affirmation of the directors' operating obligations in the legal precedents of the United States, and the influence of the law-abiding procedural mechanism, (compliance programs), on corporate governance, which was established in the guidelines on sentencing of Federal Organization crimes. This paper analyzes in detail the obligation to construct the law-abiding system in Japanese company law, and the relationship between the law-abiding system and the "two internal control systems" and the duty of care. On the basis of the previous chapter, the third chapter puts forward that the law-abiding system is the basis and guarantee of internal control, and at the same time, it points out that the internal control system is not in line with the relevant laws and regulations in the light of the fact that the internal control is not effectively implemented in China's listed companies. Therefore, the most basic objective of internal control, law-abiding management, should be stipulated in the company law as a duty of directors, in order to improve the situation and strengthen the accountability of directors. It is more likely that the director's duty to abide by the law becomes the third obligation. The fourth chapter makes a plan and elaboration on the construction frame and judgment standard of the law-abiding system, and discusses in detail the three problems (running power, information disclosure, supervisor supervision) that should be paid attention to in the operation of law-abiding system. Chapter V points out that under the background of directors' law-abiding operating obligations, there is a tendency to expand the directors' obligations as compared with the past: directors must raise objections at the time of the decision and cannot abstain from the meeting or be absent from the meeting. A director cannot evade his obligation to improve the constitution of the organization on the grounds of "fault offset". The director must actively disclose the facts after the incident rather than conceal them passively; otherwise, once the company is harmed by the director's above-mentioned omission, Directors should bear the corresponding consequences and assume liability for their own omission.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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