论公司控制权的契约构造
发布时间：2019-01-15 20:53
【摘要】： 公司控制权的制度构造是公司治理的核心问题。本文结合世界范围内公司法改革的软化趋势,以公司控制权的契约构造理念为指引,对公司控制权的生成基础、行使路径以及失范救济等问题进行了较为全面和深入的契约化分析,并以此为基础将公司控制权的制度构造全面还原为公司参与各方之间的契约安排。除导论和结论外,本文共设四章,各部分的主要内容如下: 本文的导论部分首先介绍了世界范围内一些国家公司法改革的基本情况,通过对公司法发展趋势的概括和揭示,提出了公司控制权的契约构造这一命题并阐明了该选题研究的理论和现实意义。此外,导论部分还简要说明了本文研究的路径选择以及具体的研究方法,并介绍了本文的主要内容及结构安排。 第一章,公司控制权基本概述。本章首先介绍了人们对公司权力的传统认识并给予了适当评论,其后通过对公司权力内在逻辑的追问重新厘定了公司权力的概念定义,并从权力来源的角度论证了公司权力的生成机理;在此之后,围绕着公司控制权导源于公司权力这一核心论点,重点论述了公司控制权的概念限定及类型划分,并渐次梳理了公司控制模式的演进脉络。此外,本章还基于扬弃的立场对公司契约理论进行了较为全面的检视和评介,其中重点分析了公司章程的契约属性,并解释了之所以存在公司法的主要原由。从逻辑体系上看,本章是其后各章节的基础铺垫。 第二章,公司控制权生成的契约基础。本章重点论证了股东控制权、董事控制权以及债权人等利益相关者控制权得以生成的契约基础,并描述了不同控制权形态之间的转换过程。股东之所以拥有公司的(最终)控制权,一方面是因为他们向公司让渡了传统意义上的财产所有权;另一方面,他们承担了公司经营的绝大多数边际风险,因此具有行使控制权的最佳激励。此外,由于股东是公司的最终控制者,所以,董事的控制权主要来自于股东的整体授权,为了保障股东利益的实现,在此过程中董事往往被要求承担信义义务。还有,债权人等利益相关者在特定的场合也可以通过签约获得控制权,因此,这种控制权的生成则完全是契约性的。 第三章,公司控制权行使的契约路径。本章集中分析了股东控制权、董事控制权以及债权人等利益相关者控制权在实际运作中的各种行使方式及其契约属性。就股东控制权的行使路径而言,股东投票权、投票权代理、累积投票条款的设定、投票权信托、股东表决权拘束协议等行使方式都是典型的契约安排。在董事控制权的行使方面,董事会的议事规则、商业判断原则、投票代理权征集等行使方式也可以在契约的框架内获得解释。较之于股东和董事控制权的行使路径,债权人等利益相关者控制权的行使方式则纯粹是通过合同的约定予以明确的。 第四章,公司控制权失范的契约救济。本章主要分析了(控制)股东、董事以及债权人等利益相关者滥用控制权的各种可能情形,并从契约的角度提出了规制控制权失范现象的各种策略。为了防范控制股东滥用控制权,股东之间可以通过合同约定决策权;债权人则可以在订约的起点上要求股东放弃有限责任规则的庇护,也可就有限责任基础之上的交易后果及其相关事项与任何偿债能力有疑问的公司约定各种行之有效的自助措施。针对可能发生的董事滥用控制权的情形,股东可以通过公司章程和董事服务契约为董事的行为设定各种具有针对性的契约义务并辅之以严格的违约责任。此外,债权人等利益相关者在实际控制公司以后,也可能实施对抗公司管理的潜在机会主义行为,此时对公司而言,契约的救济也不失为一种有效的自助措施。 本文的结论部分总结了各章节的主要观点和研究结论,并再次重申了公司控制权的契约构造理念,最后,在前述基础上揭示出了公司控制权的适应性品格及其重要意义。
[Abstract]:The system structure of corporate control is the core of corporate governance. In the light of the softening tendency of the company law reform in the world, this paper makes a more comprehensive and in-depth contract analysis on the basis of the creation of the control of the company, the exercise of the path and the out-of-the-standard relief, based on the contract construction idea of the company's control right. On the basis of this, the system structure of the company's control right is fully restored to the contractual arrangement between the company and the parties. In addition to the introduction and conclusion, there are four chapters in this paper. The main contents of each section are as follows: The introduction part of this paper first introduces the basic situation of the corporate law reform in some countries around the world, and through the generalization of the development trend of the company law and the theory and present of the research on this topic are set forth. In addition, the introduction part briefly describes the path selection and the specific research methods of this paper, and introduces the main contents and the knots of this paper. Organization of the organization. Chapter I, Company This chapter first introduces the traditional understanding of the company's power and gives appropriate comments, and then redefines the concept definition of the company's power through the inquiry of the internal logic of the company's power, and demonstrates the generation of the company's power from the point of view of the power source. The mechanism; after that, the core of the company's power is derived around the control of the company, and the concept and the division of the control of the company are mainly discussed, and the company's control is gradually sorted out. In addition, this chapter also makes a more comprehensive view and review on the contract theory of the company based on the position of the disclaimer, in which the contract property of the company's articles of association is analyzed, and the existence of the public is explained. The main part of the administration of justice. From the logical system, this chapter is the following The foundation of the chapter. Chapter 2, Public The key of this chapter is to demonstrate the basis of the contract that the control of the shareholders, the control of the directors and the control of the stakeholders such as the creditors can be generated, and describe the different controls. The process of conversion between the forms of the right to manufacture. The shareholders have the (ultimate) control of the company, on the one hand, because they have transferred the ownership of the property in the traditional sense to the company; on the other hand, they assume the vast majority of the marginal risks of the company's operations, and therefore There is the best incentive to exercise control. In addition, because the shareholders are the ultimate controllers of the company, the control of the directors is mainly from the overall authorization of the shareholders, in order to guarantee the realization of the interests of the shareholders, the directors in the process It is often required to assume the obligation of a letter. In addition, stakeholders, such as creditors, can also gain control over a specific occasion, and therefore, such control The generation of which is completely contractual. In this chapter, the control of the shareholders, the control of the directors and the control of the stakeholders, such as the creditors, are analyzed in this chapter. in the exercise of the control of the shareholders, the shareholders' right to vote, the right to vote, the setting of the cumulative voting clause, the right to vote, the voting restraint of the shareholders, In the exercise of the control of the directors, the rules of procedure of the board of directors, the principle of business judgment, the collection of voting power, etc. The expression can also be explained in the framework of the contract, and the way of exercising control of the stakeholders, such as the creditors and other stakeholders, is the same as that of the control of the shareholders and the directors. It is clear through the agreement of the contract. Chapter four, the contract relief of the control of the company's control of control. This chapter mainly analyzes the possible circumstances of the abuse of control by the stakeholders, the directors and the creditors, and from the contract In order to control the control of the shareholders' abuse, the decision-making power of the shareholders can be agreed by the contract, and the creditor may be in the contract. At the starting point, the shareholders are required to give up the application of the limited liability rules, and the consequences of the transaction on the basis of the limited liability and the related matters and any debt-paying ability The company in question has agreed on various effective self-help measures. In the case of potential directors' abuse of control, the shareholders may set up a variety of actions for the directors' behavior through the articles of association and the director's service contract In addition, the creditors and other stakeholders may also implement the potential opportunistic behavior against the management of the company after the actual control of the company, at the same time for the company The contract relief is also an effective self-help measure. The conclusion part of this paper sums up the main points of view and research conclusion of each chapter, and reiterates the contract construction idea of the company's control right, and finally, in the above-mentioned base,
【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：2409103
[Abstract]:The system structure of corporate control is the core of corporate governance. In the light of the softening tendency of the company law reform in the world, this paper makes a more comprehensive and in-depth contract analysis on the basis of the creation of the control of the company, the exercise of the path and the out-of-the-standard relief, based on the contract construction idea of the company's control right. On the basis of this, the system structure of the company's control right is fully restored to the contractual arrangement between the company and the parties. In addition to the introduction and conclusion, there are four chapters in this paper. The main contents of each section are as follows: The introduction part of this paper first introduces the basic situation of the corporate law reform in some countries around the world, and through the generalization of the development trend of the company law and the theory and present of the research on this topic are set forth. In addition, the introduction part briefly describes the path selection and the specific research methods of this paper, and introduces the main contents and the knots of this paper. Organization of the organization. Chapter I, Company This chapter first introduces the traditional understanding of the company's power and gives appropriate comments, and then redefines the concept definition of the company's power through the inquiry of the internal logic of the company's power, and demonstrates the generation of the company's power from the point of view of the power source. The mechanism; after that, the core of the company's power is derived around the control of the company, and the concept and the division of the control of the company are mainly discussed, and the company's control is gradually sorted out. In addition, this chapter also makes a more comprehensive view and review on the contract theory of the company based on the position of the disclaimer, in which the contract property of the company's articles of association is analyzed, and the existence of the public is explained. The main part of the administration of justice. From the logical system, this chapter is the following The foundation of the chapter. Chapter 2, Public The key of this chapter is to demonstrate the basis of the contract that the control of the shareholders, the control of the directors and the control of the stakeholders such as the creditors can be generated, and describe the different controls. The process of conversion between the forms of the right to manufacture. The shareholders have the (ultimate) control of the company, on the one hand, because they have transferred the ownership of the property in the traditional sense to the company; on the other hand, they assume the vast majority of the marginal risks of the company's operations, and therefore There is the best incentive to exercise control. In addition, because the shareholders are the ultimate controllers of the company, the control of the directors is mainly from the overall authorization of the shareholders, in order to guarantee the realization of the interests of the shareholders, the directors in the process It is often required to assume the obligation of a letter. In addition, stakeholders, such as creditors, can also gain control over a specific occasion, and therefore, such control The generation of which is completely contractual. In this chapter, the control of the shareholders, the control of the directors and the control of the stakeholders, such as the creditors, are analyzed in this chapter. in the exercise of the control of the shareholders, the shareholders' right to vote, the right to vote, the setting of the cumulative voting clause, the right to vote, the voting restraint of the shareholders, In the exercise of the control of the directors, the rules of procedure of the board of directors, the principle of business judgment, the collection of voting power, etc. The expression can also be explained in the framework of the contract, and the way of exercising control of the stakeholders, such as the creditors and other stakeholders, is the same as that of the control of the shareholders and the directors. It is clear through the agreement of the contract. Chapter four, the contract relief of the control of the company's control of control. This chapter mainly analyzes the possible circumstances of the abuse of control by the stakeholders, the directors and the creditors, and from the contract In order to control the control of the shareholders' abuse, the decision-making power of the shareholders can be agreed by the contract, and the creditor may be in the contract. At the starting point, the shareholders are required to give up the application of the limited liability rules, and the consequences of the transaction on the basis of the limited liability and the related matters and any debt-paying ability The company in question has agreed on various effective self-help measures. In the case of potential directors' abuse of control, the shareholders may set up a variety of actions for the directors' behavior through the articles of association and the director's service contract In addition, the creditors and other stakeholders may also implement the potential opportunistic behavior against the management of the company after the actual control of the company, at the same time for the company The contract relief is also an effective self-help measure. The conclusion part of this paper sums up the main points of view and research conclusion of each chapter, and reiterates the contract construction idea of the company's control right, and finally, in the above-mentioned base,
【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
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