国有股权行使的法律困境与制度完善
发布时间：2018-10-22 11:47
【摘要】： 自国有企业公司化改革至今,国有股权制度的运作取得了显著的成果,同时也遭遇了尴尬的困境,而由于国家作为股东的身份,使得国有股权出现了大量与传统股权不同的特征,这也使得对国有股权行使困境的法律思考有了更多的现实意义和理论意义。基于前述原因,笔者拟通过对国有股权的行使困境进行分析,并思考这种困境产生的法制度根源,并提出对国有股权制度完善途径的思考和见解。 本文分为引言、正文、结论三个部分。 引言主要阐述了选题意义、国内研究现状和文献综述,并对本文的研究范围进行了界定。 正文部分分为三章进行论述。 第一章主要对国有股权行使的困境进行论述。在对股东所享有的对公司控制的权利进行解构的基础上,从中国《公司法》的规定出发,从一般到特殊地论述了国有股权在行使过程中所面临的各种困境。这一部分对股东的知情权、表决权以及诉讼权进行了分别解读,并且论述了国有股权的行使在《公司法》以及《企业国有资产法》中存在冲突,并指出国有股权行使过程中存在问题的两个显著特点：一是国有资产监督管理机构对国有股权的行政行使造成了过度规制；二是股东权利对公司管理人员无法形成有效控制,管理人员的投机行为日趋增加。 第二章主要探析了我国国有股权行使困境产生的制度根源。在国有股权行使中存在着行政的过度干预和严重的内部人控制的条件下,从四个方面论述了上述困境产生的原因。包括国有股权行使方式的错误、对政府定位的分析、对公司收益获取的偏好导致对人力资源价值的忽视、规范的缺失和公司法定位的尴尬。在这一部分的叙述中,通过对国有股权以及相关制度的评述,以联系的观点提出国有股权行使过程中存在的制度性缺陷。 第三章主要阐述了重构国有股权行使体系的一个制度设想,分为理念的变革和实践的革新两方面。在理念的变革中,提出了应当将国有股权的公共属性置于重要的地位,这对于纠正经济利益至上的股权行使模式有着极为重要的作用。在实践的革新方面,本文提出了应当使国有资产监督管理机构的行为与法律体系形成互动、股权投资过程中应当对多种价值予以考量、完善国有企业经营者激励措施三个个主要观点,并且与第二章提出的内容形成呼应,对第二章提出的问题进行有针对性的解决。 结论部分提出国有企业的经营问题与国有股权的行使和监督问题是一系列长期以来形成的问题的总和,对于其解决,只能全面地加以考量,在处理这些问题时不应当简单化地一概而论,而必须对其予以综合考虑、全面变革。
[Abstract]:Since the reform of state-owned enterprises' corporatization, the operation of the state-owned equity system has made remarkable achievements, and has also encountered an awkward predicament, and because of the status of the state as a shareholder, It makes state-owned equity appear a large number of different characteristics from traditional equity, which also makes the legal thinking on the dilemma of state-owned equity exercise more practical and theoretical significance. Based on the above reasons, the author intends to analyze the dilemma of the exercise of state-owned equity, and consider the legal system root of this dilemma, and put forward some thoughts and opinions on how to perfect the state-owned equity system. This paper is divided into three parts: introduction, text and conclusion. The introduction describes the significance of the topic, domestic research status and literature review, and defines the scope of this study. The text is divided into three chapters. The first chapter mainly discusses the dilemma of the exercise of state-owned equity. On the basis of the deconstruction of shareholders' right to control the company, and from the provisions of the Company Law of China, this paper discusses the various difficulties faced by the state-owned equity in the process of exercising it from general to special. In this part, the right to know, the right to vote and the right to litigation are respectively interpreted, and the conflict of the exercise of state-owned equity in the Company Law and the Enterprise State-owned assets Law is discussed. It also points out that there are two outstanding characteristics in the process of the exercise of state-owned equity: one is the excessive regulation of the administrative exercise of state-owned equity by the state-owned assets supervision and management agency, the other is the inability of shareholders' rights to form effective control over the managers of the company. Speculation by managers is on the rise. The second chapter mainly analyzes the institutional root of the predicament of the exercise of state-owned equity in China. Under the condition of excessive administrative intervention and serious insider control in the exercise of state-owned equity, the causes of the above difficulties are discussed from four aspects. It includes errors in the exercise of state-owned equity, analysis of government orientation, preference for corporate income, neglect of human resource value, lack of norms and embarrassment of company law positioning. In this part of the narrative, through the review of the state-owned equity and related systems, the paper puts forward the institutional defects in the process of the exercise of state-owned equity from the point of view of connection. The third chapter mainly expounds a system assumption of reconstructing the exercise system of state-owned equity, which is divided into two aspects: the change of idea and the innovation of practice. In the transformation of the concept, it is proposed that the public attribute of state-owned equity should be placed in an important position, which plays an extremely important role in correcting the mode of equity exercise in which economic interests are paramount. In the aspect of practice innovation, this paper puts forward that the behavior of state-owned assets supervision and management institutions should interact with the legal system, and the various values should be considered in the process of equity investment. There are three main points of view on how to perfect the incentive measures of the managers of the state-owned enterprises, which are echoed with the contents put forward in the second chapter, and the problems raised in the second chapter are solved pertinently. The conclusion is that the operation of state-owned enterprises and the exercise and supervision of state-owned equity are the summation of a series of problems which have been formed for a long time. These problems should not be dealt with in a simplistic way, but must be comprehensively considered and transformed.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2287070
[Abstract]:Since the reform of state-owned enterprises' corporatization, the operation of the state-owned equity system has made remarkable achievements, and has also encountered an awkward predicament, and because of the status of the state as a shareholder, It makes state-owned equity appear a large number of different characteristics from traditional equity, which also makes the legal thinking on the dilemma of state-owned equity exercise more practical and theoretical significance. Based on the above reasons, the author intends to analyze the dilemma of the exercise of state-owned equity, and consider the legal system root of this dilemma, and put forward some thoughts and opinions on how to perfect the state-owned equity system. This paper is divided into three parts: introduction, text and conclusion. The introduction describes the significance of the topic, domestic research status and literature review, and defines the scope of this study. The text is divided into three chapters. The first chapter mainly discusses the dilemma of the exercise of state-owned equity. On the basis of the deconstruction of shareholders' right to control the company, and from the provisions of the Company Law of China, this paper discusses the various difficulties faced by the state-owned equity in the process of exercising it from general to special. In this part, the right to know, the right to vote and the right to litigation are respectively interpreted, and the conflict of the exercise of state-owned equity in the Company Law and the Enterprise State-owned assets Law is discussed. It also points out that there are two outstanding characteristics in the process of the exercise of state-owned equity: one is the excessive regulation of the administrative exercise of state-owned equity by the state-owned assets supervision and management agency, the other is the inability of shareholders' rights to form effective control over the managers of the company. Speculation by managers is on the rise. The second chapter mainly analyzes the institutional root of the predicament of the exercise of state-owned equity in China. Under the condition of excessive administrative intervention and serious insider control in the exercise of state-owned equity, the causes of the above difficulties are discussed from four aspects. It includes errors in the exercise of state-owned equity, analysis of government orientation, preference for corporate income, neglect of human resource value, lack of norms and embarrassment of company law positioning. In this part of the narrative, through the review of the state-owned equity and related systems, the paper puts forward the institutional defects in the process of the exercise of state-owned equity from the point of view of connection. The third chapter mainly expounds a system assumption of reconstructing the exercise system of state-owned equity, which is divided into two aspects: the change of idea and the innovation of practice. In the transformation of the concept, it is proposed that the public attribute of state-owned equity should be placed in an important position, which plays an extremely important role in correcting the mode of equity exercise in which economic interests are paramount. In the aspect of practice innovation, this paper puts forward that the behavior of state-owned assets supervision and management institutions should interact with the legal system, and the various values should be considered in the process of equity investment. There are three main points of view on how to perfect the incentive measures of the managers of the state-owned enterprises, which are echoed with the contents put forward in the second chapter, and the problems raised in the second chapter are solved pertinently. The conclusion is that the operation of state-owned enterprises and the exercise and supervision of state-owned equity are the summation of a series of problems which have been formed for a long time. These problems should not be dealt with in a simplistic way, but must be comprehensively considered and transformed.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前1条
1 郎田丰;国有股权行使研究[D];山西大学;2011年
，本文编号：2287070
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