论上市公司经理职权滥用的防范
发布时间：2018-10-30 17:21
【摘要】：经理职权是一项权力,权力易于扩大,并且可能导致滥用,特别是上市公司经理滥用职权的行为,造成的损失和社会影响力更巨大,包括安然公司经理丑闻在内的众多案例引发了一场针对经理问题的全球性的大讨论,如何防范经理职权滥用行为重新成为一个广受关注的课题。本文通过具体案例剖析了我国上市公司经理职权滥用行为的表象,并通过实证调查分析了我国上市公司经理职权滥用的原因和症结,并针对经理职权滥用的原因提出了约束经理职权滥用的一点建议。本文主张通过对经理职权行使主体的监督和对经理职权范围的约束建构我国上市公司经理职权滥用行为的内部防范机制,以减少上市公司经理职权滥用行为的出现。 论文分为引言、正文、结语三大部分,其中正文分为四章。 引言部分对本文研究问题的原因、背景及研究的方法进行了概述。 第一章是“上市公司经理职权行使的基础”。这一部分引入了两大法系国家关于经理概念的界定、经理权和经理职权的关系以及经理职权行使基础的历史考察,主要介绍了我国经理职权法定化的特点以及上市公司经理职权与非上市公司经理职权的不同点。 第二章是“我国上市公司经理职权行使的现状”。这一部分简单介绍了经理职权在法律监督和保障体制下的一般现状,通过对上市公司经理职权滥用案例的简要分析,笔者认为上市公司经理职权滥用行为可以概括为对我国《公司法》第五十条规定中前两项职权的侵害,我国上市公司经理的职权范围过于广泛,现实中存在着对上市公司经理职权的范围进行必要限制或对其职权行使进行监督和约束的必要性。 第三章是“我国上市公司经理职权行使现状的原因分析”。这一部分中,从上市公司经理职权主体(行使主体和限制主体)和现行公司经理制度的角度,分析了我国上市公司经理职权滥用的诱发因素。笔者认为上市公司经理本身的道德感和责任感不足,上市公司缺乏采取适当措施及时限制经理职权范围的积极性。上市公司经理职权滥用与《公司法》中关于董事兼任经理、经理职权法定化的规定存在一定关系,并且提出了现行立法缺乏对经理权利、民事责任的规定,这一立法缺失在一定程度上导致了经理激励机制的缺失和责任承担的减少。 第四章是“上市公司经理职权滥用的防范机制构建”。在这一部分中,笔者从构建我国上市公司经理内部约束机制的价值为出发点,从经理职权的行使主体和经理职权范围的界定及监督两方面来构建我国上市公司经理职权滥用的防范机制。 最后一部分是本文的结论,简单地回顾了本文写作的得失之处。
[Abstract]:A manager's authority is a power that is easy to expand and can lead to abuse, especially by managers of listed companies, resulting in greater loss and social influence. Many cases, including Enron's manager scandal, have led to a global discussion on manager issues. How to prevent managers from abusing their authority has become a subject of great concern. This paper analyzes the appearance of managers' abuse of power in listed companies in our country through concrete cases, and analyzes the causes and sticking points of managers' abuse of authority in listed companies through empirical investigation. The author also puts forward some suggestions to restrain the abuse of manager's power. This paper proposes to construct the internal prevention mechanism of the abuse of manager's power by supervising the subject of the exercise of the manager's authority and restricting the scope of the manager's authority, so as to reduce the occurrence of the abuse of the manager's power in the listed company. The thesis is divided into three parts: introduction, text and conclusion, in which the text is divided into four chapters. The introduction summarizes the reasons, background and research methods of this paper. The first chapter is the basis of the executive power of listed companies. This part introduces the definition of the concept of manager in the countries of two legal systems, the relationship between manager's power and manager's power, and the historical investigation of the basis of the exercise of manager's authority. This paper mainly introduces the characteristics of the legalization of manager's power in our country and the difference between manager's power of listed company and that of non-listed company. The second chapter is the status quo of the exercise of manager's functions and powers of listed companies in China. This part briefly introduces the general situation of manager's power under the system of legal supervision and guarantee, through the brief analysis of the case of manager's abuse of authority in listed company. The author thinks that the abuse of manager's power of listed company can be summarized as the infringement of the first two functions and powers stipulated in Article 50 of the Company Law of our country, and the scope of the manager's authority of listed company in our country is too wide. In reality, it is necessary to restrict the scope of the manager's power or to supervise and restrain the exercise of his authority. The third chapter is the reason analysis of the status quo of the executive power of listed companies in our country. In this part, the author analyzes the inducing factors of the abuse of manager's power of listed companies in China from the angle of the subject of manager's authority (exercise subject and restriction subject) and the current system of company manager. The author thinks that the managers of listed companies have insufficient moral sense and sense of responsibility, and the listed companies lack the enthusiasm to take appropriate measures to limit the managers' terms of reference in time. The abuse of manager's power in listed company has certain relation with the regulation of the director concurrently acting as manager and the legalization of manager's power in Company Law, and it is pointed out that the current legislation lacks the stipulation of manager's right and civil liability. To a certain extent, this lack of legislation leads to the lack of manager incentive mechanism and the reduction of responsibility. The fourth chapter is the construction of prevention mechanism of manager's abuse of power in listed company. In this part, the author starts from the value of constructing the internal constraint mechanism of the managers of listed companies in our country. From the two aspects of the exercise of manager's authority and the definition and supervision of manager's power, this paper constructs the prevention mechanism of manager's abuse of power in listed company. The last part is the conclusion of this paper.
【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：2300661
[Abstract]:A manager's authority is a power that is easy to expand and can lead to abuse, especially by managers of listed companies, resulting in greater loss and social influence. Many cases, including Enron's manager scandal, have led to a global discussion on manager issues. How to prevent managers from abusing their authority has become a subject of great concern. This paper analyzes the appearance of managers' abuse of power in listed companies in our country through concrete cases, and analyzes the causes and sticking points of managers' abuse of authority in listed companies through empirical investigation. The author also puts forward some suggestions to restrain the abuse of manager's power. This paper proposes to construct the internal prevention mechanism of the abuse of manager's power by supervising the subject of the exercise of the manager's authority and restricting the scope of the manager's authority, so as to reduce the occurrence of the abuse of the manager's power in the listed company. The thesis is divided into three parts: introduction, text and conclusion, in which the text is divided into four chapters. The introduction summarizes the reasons, background and research methods of this paper. The first chapter is the basis of the executive power of listed companies. This part introduces the definition of the concept of manager in the countries of two legal systems, the relationship between manager's power and manager's power, and the historical investigation of the basis of the exercise of manager's authority. This paper mainly introduces the characteristics of the legalization of manager's power in our country and the difference between manager's power of listed company and that of non-listed company. The second chapter is the status quo of the exercise of manager's functions and powers of listed companies in China. This part briefly introduces the general situation of manager's power under the system of legal supervision and guarantee, through the brief analysis of the case of manager's abuse of authority in listed company. The author thinks that the abuse of manager's power of listed company can be summarized as the infringement of the first two functions and powers stipulated in Article 50 of the Company Law of our country, and the scope of the manager's authority of listed company in our country is too wide. In reality, it is necessary to restrict the scope of the manager's power or to supervise and restrain the exercise of his authority. The third chapter is the reason analysis of the status quo of the executive power of listed companies in our country. In this part, the author analyzes the inducing factors of the abuse of manager's power of listed companies in China from the angle of the subject of manager's authority (exercise subject and restriction subject) and the current system of company manager. The author thinks that the managers of listed companies have insufficient moral sense and sense of responsibility, and the listed companies lack the enthusiasm to take appropriate measures to limit the managers' terms of reference in time. The abuse of manager's power in listed company has certain relation with the regulation of the director concurrently acting as manager and the legalization of manager's power in Company Law, and it is pointed out that the current legislation lacks the stipulation of manager's right and civil liability. To a certain extent, this lack of legislation leads to the lack of manager incentive mechanism and the reduction of responsibility. The fourth chapter is the construction of prevention mechanism of manager's abuse of power in listed company. In this part, the author starts from the value of constructing the internal constraint mechanism of the managers of listed companies in our country. From the two aspects of the exercise of manager's authority and the definition and supervision of manager's power, this paper constructs the prevention mechanism of manager's abuse of power in listed company. The last part is the conclusion of this paper.
【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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