董事会决议瑕疵救济制度研究
发布时间：2018-11-27 10:40
【摘要】：随着董事会职权的扩张及董事在公司治理中发挥着越来越重要的作用,因董事会瑕疵决议导致的公司内部混乱及外部纠纷等状况不断出现。公司基于瑕疵决议所为的行为,对内如经理的任免,对外如投资、交易行为等,必然因瑕疵决议的不存在、无效或可撤销而受到牵连,使公司的对内对外行为陷入不稳定状态,极大的影响公司的内部治理、公司的声誉及公司的利益。对董事责任的追究更是在告诫董事在行使其董事职权时务必尽到忠实、谨慎的义务,从源头上制止瑕疵决议的出现。对董事会决议瑕疵问题进行研究是对公司、股东及其他交易主体进行保护的需要,同时也是维护交易安全市场稳定的要求。因此,对于董事会决议瑕疵所产生的问题值得普遍关注和探讨。 从我国的研究现状来说,我国学者对董事会决议瑕疵救济问题的专门研究是少之又少,而且并不深入。事实上,虽然《公司法》是将股东会和董事会决议瑕疵问题放在一起规定的,但是,二者除了决议的内容不同之外,还有很多的不同之处,因为参与股东会议是股东在管理自己的事务,决议的内部效力较强,一般只要不损害外部第三人的利益则就能把股东会决议看作是股东间对自己负责而达成的合意。比如,董事要对董事会的决议承担责任而在股东会议中对股东则无此要求。因此,有单独探讨董事会决议瑕疵救济制度的必要。本文主要本文围绕“董事会决议瑕疵的救济”这一问题展开研究,首先明确瑕疵决议作为研究对象的具体内容和范围,然后再分两个层次对瑕疵决议的救济制度进行细致分析。董事会决议瑕疵的补正是在进入司法救济之前给予公司的一个内部救济机会,而该私力救济的效果应该和瑕疵决议被确认无效或撤销后的效果同样重要,但两种救济方式又各有特点并发挥着各自独特的作用。最后关于董事瑕疵决议的救济制度评价问题是完善我国对董事会决议瑕疵救济制度必然要探讨的问题。通过对我国现行的救济制度的立法评价及在公司法视角下对私力救济和司法救济的一致性及差异性的比较,从而引导各利益相关人选择合适的方式对董事会决议瑕疵进行救济。
[Abstract]:With the expansion of the authority of the board of directors and the more and more important role of the directors in corporate governance, the internal confusion and external disputes caused by the defective resolutions of the board of directors appear constantly. The actions of the company based on defective resolutions, such as appointment and removal of managers, foreign investment, transactions, etc., are bound to be implicated by the non-existence, invalidity or revocability of defective resolutions, resulting in the internal and external behavior of the company falling into an unstable state, Greatly affect the company's internal governance, the company's reputation and the company's interests. The investigation of directors' responsibility is to warn the directors to fulfill the duty of being faithful and careful in exercising their functions and powers of directors, and to stop the appearance of defective resolutions from the source. It is necessary to protect the company, shareholders and other trading subjects to study the defect of the board of directors resolution, and it is also the requirement to maintain the stability of the transaction security market. Therefore, the problems arising from the defects of board resolutions are worthy of universal attention and discussion. According to the present research situation of our country, the special research on the remedy of board of directors' resolution defect is rare and not deep. In fact, although the Company Law stipulates that the shareholders' meeting and the resolution of the board of directors are defective together, there are many differences between the two resolutions besides the content of the resolution. Because participating in the shareholders' meeting is the shareholders' management of their own affairs, the internal effect of the resolution is relatively strong. Generally speaking, as long as the interests of the outside third party are not harmed, the shareholders' meeting resolution can be regarded as an agreement reached between shareholders who are responsible for themselves. For example, directors are responsible for board decisions and shareholders are not required to do so at shareholder meetings. Therefore, there is a separate discussion of the board of directors resolution defect relief system is necessary. This paper focuses on the issue of "the remedy of defects of the Board of Directors". Firstly, it clarifies the content and scope of the defective resolution as the object of study, and then makes a detailed analysis of the relief system of the defective resolution in two levels. The correction of the defect of the board resolution is an internal remedy opportunity for the company before entering the judicial remedy, and the effect of the private remedy should be as important as the effect after the defective resolution is confirmed to be invalid or revoked. However, the two ways of relief have their own characteristics and play a unique role. Finally, the evaluation of the remedy system of the board of directors' defective resolution is an inevitable problem to be explored to perfect the remedy system of the board of directors' resolution. Through the legislative evaluation of the current relief system of our country and the comparison of the consistency and difference between private relief and judicial remedy under the angle of company law, the stakeholders are guided to choose appropriate ways to remedy the defects of the board of directors' resolution.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2360459
[Abstract]:With the expansion of the authority of the board of directors and the more and more important role of the directors in corporate governance, the internal confusion and external disputes caused by the defective resolutions of the board of directors appear constantly. The actions of the company based on defective resolutions, such as appointment and removal of managers, foreign investment, transactions, etc., are bound to be implicated by the non-existence, invalidity or revocability of defective resolutions, resulting in the internal and external behavior of the company falling into an unstable state, Greatly affect the company's internal governance, the company's reputation and the company's interests. The investigation of directors' responsibility is to warn the directors to fulfill the duty of being faithful and careful in exercising their functions and powers of directors, and to stop the appearance of defective resolutions from the source. It is necessary to protect the company, shareholders and other trading subjects to study the defect of the board of directors resolution, and it is also the requirement to maintain the stability of the transaction security market. Therefore, the problems arising from the defects of board resolutions are worthy of universal attention and discussion. According to the present research situation of our country, the special research on the remedy of board of directors' resolution defect is rare and not deep. In fact, although the Company Law stipulates that the shareholders' meeting and the resolution of the board of directors are defective together, there are many differences between the two resolutions besides the content of the resolution. Because participating in the shareholders' meeting is the shareholders' management of their own affairs, the internal effect of the resolution is relatively strong. Generally speaking, as long as the interests of the outside third party are not harmed, the shareholders' meeting resolution can be regarded as an agreement reached between shareholders who are responsible for themselves. For example, directors are responsible for board decisions and shareholders are not required to do so at shareholder meetings. Therefore, there is a separate discussion of the board of directors resolution defect relief system is necessary. This paper focuses on the issue of "the remedy of defects of the Board of Directors". Firstly, it clarifies the content and scope of the defective resolution as the object of study, and then makes a detailed analysis of the relief system of the defective resolution in two levels. The correction of the defect of the board resolution is an internal remedy opportunity for the company before entering the judicial remedy, and the effect of the private remedy should be as important as the effect after the defective resolution is confirmed to be invalid or revoked. However, the two ways of relief have their own characteristics and play a unique role. Finally, the evaluation of the remedy system of the board of directors' defective resolution is an inevitable problem to be explored to perfect the remedy system of the board of directors' resolution. Through the legislative evaluation of the current relief system of our country and the comparison of the consistency and difference between private relief and judicial remedy under the angle of company law, the stakeholders are guided to choose appropriate ways to remedy the defects of the board of directors' resolution.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关期刊论文 前1条
1 曾虹;;试论董事表决权瑕疵的效力及法律救济[J];改革与开放;2012年24期
，本文编号：2360459
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