我国上市公司独立董事制度有效性的实证研究

发布时间：2019-05-05 07:37

【摘要】：我国上市公司治理中,监督方式实行二元制(股东大会下设董事会与监事会两个机关,分别履行决策权与监督权)之监事会制,履行公司监督职权。我国上市公司国有股“一股独大”,上市公司被内部人控制,监事会监督功能失效,公司管理执行层经营不规范,损害公司整体利益,侵害中小股东利益,影响证券资本市场健康良性发展。为解决公司被内部人控制问题,2001年8月,我国上市公司正式移植引入肇始于美国的独立董事制度(独立董事,是与公司不存利益关联的董事。弥补美国公司治理一元制缺少专门监督机关的缺陷,履行监督职权,防止董事会滥权与经理执行层控制公司),由此,我国上市公司监事会与独立董事两种制度并存,共同履行监督职能。因为我国独立董事制度自身的构建缺陷与不足,又与监事会职权存在交叉和重叠,独立董事制度有效性受到质疑。笔者采用文献研究与案例分析,从监管层行政处罚的视角,分析独立董事行政责任,试图验证并表征独立董事勤勉尽责。在第一部分内容中,通过梳理我国独立董事制度设立过程,解析了独立董事的概念、特别法律特征、特殊职权与义务、法律责任,洞察到独立董事制度自身的瑕疵与不周延,对制度细节具体执行分析了弥补措施。第二部分通过证监会的处罚决定,分析实证了我国上市公司经营不规范,监管层依法治市;独立董事的监督作用,有效性不明显,甚至监督失灵。第三部分是重点。笔者考察论述了我国公司治理对照实践独立董事与外部监事制度,目的在于积累并总结与国情相符的实践智慧,笔者提出了我国上市公司独立董事完善的具体方法和实现路径,结合行政处罚样本案例进行分析发现,证券资本市场存在制度漏洞,是监事会独立董事“双重监督”失灵的根源,建议公司法增加上市公司“董事对公司债权人的责任制度”,补强上市公司监督机关的监督作用,对现行上市发行实施“注册制”,具有必要性和重大现实意义。并籍此提出,要构建中国特色的公司治理模式,应从中国社会主义市场经济特点出发,尊重中国证券资本市场运行规律,吸纳融合独立董事制度外部监事制度的优点。
[Abstract]:In the governance of listed companies in China, the supervision mode adopts the dual system (the board of directors and the board of supervisors under the general meeting of shareholders, which perform the power of decision-making and supervision respectively) and the supervisory power of the company. The state-owned shares of listed companies in China are "one big share", the listed companies are controlled by insiders, the supervisory function of the board of supervisors is ineffective, the management of the executive layer of the company is not standardized, the overall interests of the company are damaged, and the interests of small and medium shareholders are violated. Affect the healthy and healthy development of the securities capital market. In order to solve the problem that the company is controlled by insiders, in August 2001, China's listed companies formally introduced the independent director system, which originated in the United States (independent directors, which are directors with no interest in the company). To make up for the lack of special supervision organs in the United States corporate governance system, to perform supervision functions and powers, to prevent board of directors from abusing power and managers to control companies at the executive level), thus, the board of supervisors and the independent directors of listed companies in China coexist with each other. Jointly perform supervisory functions. The validity of the independent director system is questioned because of the defects and deficiencies in the construction of the independent director system in our country and the overlapping and overlapping of the functions and powers of the board of supervisors. By means of literature research and case analysis, the author analyzes the administrative responsibility of independent directors from the perspective of administrative penalty of supervision level, and tries to verify and characterize the diligence and due diligence of independent directors. In the first part, through combing the process of the establishment of the independent director system in China, the author analyzes the concept of independent director, special legal characteristics, special functions and duties, legal liability and insight into the defects and improper extension of the independent director system itself. The detailed implementation of the system analysis of remedial measures. The second part, through the punishment decision of CSRC, analyzes and proves that the management of listed companies in China is not standardized, and the supervision authorities govern the market in accordance with the law; the supervision function of independent directors is not obvious, and even the supervision is out of order. The third part is the focus. The author investigates and discusses the independent director and external supervisor system of corporate governance in China, aiming at accumulating and summarizing the practical wisdom in accordance with the national conditions. The author puts forward the concrete methods and realization paths for the improvement of independent directors of listed companies in China. Based on the sample cases of administrative penalty, it is found that there are institutional loopholes in the securities capital market, which is the root cause of the failure of "double supervision" of the independent directors of the board of supervisors. It is suggested that the company law should increase the "responsibility system of directors to corporate creditors" of listed companies. It is necessary and practical to strengthen the supervision function of the supervision organs of listed companies to carry out the "registration system" for the current listing and issuing. Therefore, in order to construct the corporate governance model with Chinese characteristics, we should proceed from the characteristics of China's socialist market economy, respect the operating law of China's securities capital market, and absorb the advantages of the external supervisor system of the independent director system.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：F271

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