论公司章程自治与界限
发布时间：2019-06-24 15:16
【摘要】：长期以来,因受到计划经济时代的影响,我国的公司法重行政调控、轻公司股东意志表达,其中关乎公司治理的规定刚性有余而柔性不足。这给我国市场经济的发展造成了一定的障碍。随着新《公司法》的颁行,我国原本普遍僵硬的公司治理体制得到了松绑,股东的自由意志得以通过多种法定的途径进入公司组织、经营和管理的实践层面。作为股东设立并经营公司、设定股东之间、股东与公司之间以及公司与经营管理层之间基本权利义务的基础法律文件,公司章程对于公司治理有着至关重要的意义。公司股东现在能够在章程中自主约定的事项较以往有很大扩充,这对公司经营以及股东权益保护均有着十分有益的作用。本文共分三个部分,即导言、正文和结论。 本文探讨公司章程自治及其界限的问题。本文的论述将采用规范的分析方法和比较的研究方法,对公司章程的性质、章程运行的法律环境等进行透彻的分析;并对章程自治的意义、必要性,以及对厘定章程自治界限的目的和实践操作进行论述。通过本文的论述以期对构建完善的章程自治乃至公司治理模式提出一些建设性意见和构想。 导言部分主要介绍了本文研究的缘起、选题目的、写作方法与文章布局。 正文部分共分四章。 第一章,以公司章程自治概念作为论文的切入点,通过对公司章程的性质、章程自治内容及其必要性的分析,我们可以看出2005年《公司法》充分体现了加强公司章程自治这一立法新特点。本章力图搭建一个为下文讨论的理论基础平台。 第二章,阐述了公司章程自治背景下公司法的规制分析,分别从公司章程自治限制的理论基础解读了公司章程自治的局限性,以及公司法应如何限制章程自治的途径。本章的目的是在公司法的范围内理解公司章程自治理念,其作用在于建立具有法律倾向的心理认同,以获得一个赖以讨论和交流这一问题的平台。 第三章,集中讨论通常意义上公司章程自治的界限厘定。首先明确章程自治界限厘定的意义即在于厘定法律强制的界限,有其法律上和现实上的必要性。继而对公司处于不同阶段的章程自治界限范围,及不同类型公司的章程自治界限范围进行论述。 第四章,对我国当前公司章程自治及其界限的现实问题进行了分析,并提出了笔者的法律建议。在公司治理中要注意加强公司章程自治与公司法的协调,以更好地发挥公司章程自治功能和作用,使公司股东实现其利益的最大化。 结论部分强调股东自治意愿及公司合法权利应得到尊重,应减少政府干预,提倡私法自治理念。
[Abstract]:For a long time, due to the influence of the planned economy era, the corporate law of our country emphasizes the administrative regulation and control, neglects the expression of the will of the shareholders of the company, in which the regulations related to corporate governance are more than rigid and the flexibility is insufficient. This has caused certain obstacles to the development of market economy in our country. With the promulgation of the new Company Law, the original rigid corporate governance system in China has been untied, and the free will of shareholders has been able to enter the practical level of corporate organization, management and management through a variety of legal ways. As the basic legal documents for shareholders to set up and manage companies, to set up basic rights and obligations between shareholders, between shareholders and companies, and between companies and management, the articles of association are of great significance to corporate governance. The matters that shareholders can agree on independently in the articles of association are greatly expanded than in the past, which plays a very useful role in the operation of the company and the protection of shareholders' rights and interests. This paper is divided into three parts, namely, introduction, main body and conclusion. This paper discusses the autonomy of the articles of association and its boundaries. In this paper, the normative analysis method and comparative research method will be used to make a thorough analysis of the nature of the articles of association and the legal environment for the operation of the articles of association, and the significance and necessity of the autonomy of the articles of association, as well as the purpose and practical operation of determining the limits of the autonomy of the articles of association will be discussed. Through the discussion of this paper, this paper aims to put forward some constructive suggestions and ideas on the construction of perfect autonomy of articles of association and even the mode of corporate governance. The introduction mainly introduces the origin of this study, the purpose of the topic, the writing method and the layout of the article. The main body is divided into four chapters. In the first chapter, taking the concept of autonomy of the articles of association as the starting point of the paper, through the analysis of the nature of the articles of association, the content and necessity of the autonomy of the articles of association, we can see that the 2005 Company Law fully reflects the new characteristics of strengthening the autonomy of the articles of association. This chapter tries to build a theoretical basis platform discussed below. The second chapter expounds the regulation analysis of the company law under the background of the autonomy of the articles of association, and interprets the limitations of the autonomy of the articles of association from the theoretical basis of the autonomy of the articles of association, and how the company law should restrict the autonomy of the articles of association. The purpose of this chapter is to understand the concept of autonomy of articles of association within the scope of company law, and its function is to establish psychological identity with legal tendency in order to obtain a platform for discussion and communication of this issue. The third chapter focuses on the definition of the limits of autonomy of the articles of association in the usual sense. First of all, it is necessary to define the boundary of autonomy of articles of association, that is, to determine the boundary of legal enforcement. Then the scope of autonomy of articles of association in different stages of the company and the scope of autonomy of articles of association of different types of companies are discussed. The fourth chapter analyzes the current autonomy of the articles of association and its boundaries in China, and puts forward the author's legal suggestions. In the corporate governance, we should pay attention to strengthening the coordination between the autonomy of the articles of association and the company law, so as to give full play to the function and function of the autonomy of the articles of association and maximize the interests of the shareholders of the company. The conclusion part emphasizes that the will of shareholders' autonomy and the legitimate rights of the company should be respected, the government intervention should be reduced, and the concept of private law autonomy should be advocated.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2505162
[Abstract]:For a long time, due to the influence of the planned economy era, the corporate law of our country emphasizes the administrative regulation and control, neglects the expression of the will of the shareholders of the company, in which the regulations related to corporate governance are more than rigid and the flexibility is insufficient. This has caused certain obstacles to the development of market economy in our country. With the promulgation of the new Company Law, the original rigid corporate governance system in China has been untied, and the free will of shareholders has been able to enter the practical level of corporate organization, management and management through a variety of legal ways. As the basic legal documents for shareholders to set up and manage companies, to set up basic rights and obligations between shareholders, between shareholders and companies, and between companies and management, the articles of association are of great significance to corporate governance. The matters that shareholders can agree on independently in the articles of association are greatly expanded than in the past, which plays a very useful role in the operation of the company and the protection of shareholders' rights and interests. This paper is divided into three parts, namely, introduction, main body and conclusion. This paper discusses the autonomy of the articles of association and its boundaries. In this paper, the normative analysis method and comparative research method will be used to make a thorough analysis of the nature of the articles of association and the legal environment for the operation of the articles of association, and the significance and necessity of the autonomy of the articles of association, as well as the purpose and practical operation of determining the limits of the autonomy of the articles of association will be discussed. Through the discussion of this paper, this paper aims to put forward some constructive suggestions and ideas on the construction of perfect autonomy of articles of association and even the mode of corporate governance. The introduction mainly introduces the origin of this study, the purpose of the topic, the writing method and the layout of the article. The main body is divided into four chapters. In the first chapter, taking the concept of autonomy of the articles of association as the starting point of the paper, through the analysis of the nature of the articles of association, the content and necessity of the autonomy of the articles of association, we can see that the 2005 Company Law fully reflects the new characteristics of strengthening the autonomy of the articles of association. This chapter tries to build a theoretical basis platform discussed below. The second chapter expounds the regulation analysis of the company law under the background of the autonomy of the articles of association, and interprets the limitations of the autonomy of the articles of association from the theoretical basis of the autonomy of the articles of association, and how the company law should restrict the autonomy of the articles of association. The purpose of this chapter is to understand the concept of autonomy of articles of association within the scope of company law, and its function is to establish psychological identity with legal tendency in order to obtain a platform for discussion and communication of this issue. The third chapter focuses on the definition of the limits of autonomy of the articles of association in the usual sense. First of all, it is necessary to define the boundary of autonomy of articles of association, that is, to determine the boundary of legal enforcement. Then the scope of autonomy of articles of association in different stages of the company and the scope of autonomy of articles of association of different types of companies are discussed. The fourth chapter analyzes the current autonomy of the articles of association and its boundaries in China, and puts forward the author's legal suggestions. In the corporate governance, we should pay attention to strengthening the coordination between the autonomy of the articles of association and the company law, so as to give full play to the function and function of the autonomy of the articles of association and maximize the interests of the shareholders of the company. The conclusion part emphasizes that the will of shareholders' autonomy and the legitimate rights of the company should be respected, the government intervention should be reduced, and the concept of private law autonomy should be advocated.
【学位授予单位】：华东政法大学
【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 张琦;公司章程论[D];中国政法大学;2012年
，本文编号：2505162
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