公司章程“另有规定”研究
发布时间：2018-09-03 06:40
【摘要】：公司章程“另有规定”作为缺省性规则的一种,调和着强制性与任意性规范,被视为公司法规范的“缓冲带”。作为公司法应然性规范的构成之一,其价值在公司实务中不可小觑,2005年《公司法》修订将“另有规定”扩展为现有6条,在现代公司法主张公司自治的背景面前似乎显得过于狭隘,对解决公司法在实践发展中遇到的问题还是远远不够的。在世界各国强调公司自治的大趋势下,我国公司法中任意性条款存在的比例显然还不能完全与发达国家公司法立法相媲美,对于缺省性条款的运用不够宽阔。以合同理论说为法理基础的公司法条文,我国公司法对缺省性规则的小范围适用并没能发挥其作为合同范本高效便利的价值。 现代公司自治的广度取决于公司法的定性,公司法的私法品质意味着公司法规范中任意性条款占比大于强制性条款,这就意味着公司治理者有着更多的空间实现意思自治。公司自治的深度取决于公司法规范应然性结构的设计,章程“另有规定”作为缺省性规则的一种,给予公司治理者相对的选择以排除公司法预设的规定,在一定程度上间接拓宽公司自治的空间。章程中“另有规定”条款的多少取决于强制性条款与任意性条款之间的妥当平衡。2014年我国《公司法》的修改中未见对缺省性规则的修改及增加。而我国《公司法》章程“另有规定”作为缺省性规则,其运用的范围应不止《公司法》现有的6条。 本文通过借鉴国外及台湾地区的公司法缺省性规范设计,结合其当下的立法背景,重点分析关于股东会与董事会层面的公章程“另有规定”条款。作为公司运营核心的股东会与董事会,其中章程“另有规定”的设计从侧面体现了公司自治的开放度。对比我国公司法现有条款,在实体方面,如股权、继承、利润分配等股东自益权方面的规定大同小异,基本都尊重股东意思自治,由股东自已设计经济权利的分配规则。在程序方面,国外类似章程“另有规定”的条款则有更大的开放度,诸多程序性规则的设计更为具体兼顾人性化理念,在保护股东权利的同时也更多考虑义务的承担,如股东大会的出席人数、会议召开地点、董事会人数与年龄等限制大多用缺省性条款来设计。借鉴上述缺省性规定可弥补我国《公司法》在程序性规范上的设计缺陷。试想我国《公司法》是否可以在公司治理模式、股东会、董事会议事、召集、表决等相关的程序性事项及独立董事制度中不足之处做出补充，完善程序和制度存在的先天缺失，将其微调成章程“另有规定”，，大大加强这些条款的弹性，把握我国当下以市场配置资源为中心的改革要求，同世界立法潮流与时俱进?
[Abstract]:As one of the default rules, the articles of Association, which reconcile the mandatory and arbitrary norms, are regarded as the "buffer zone" of the company law norms. As one of the components of the standard of company law, its value can not be underestimated in the company practice. In 2005, the amendment of the Company Law expanded the "additional provisions" to six existing articles. In the background of modern company law advocating corporate autonomy, it seems too narrow, which is far from enough to solve the problems encountered in the practice and development of company law. Under the trend of emphasizing corporate autonomy in many countries in the world, the proportion of arbitrariness clauses in our company law is obviously not comparable to that in developed countries, and the application of default clauses is not wide enough. On the basis of the theory of contract, the small scope application of the default rules in the company law of our country has not brought into full play the value of its efficiency and convenience as a contract model. The breadth of modern corporate autonomy depends on the qualitative nature of the company law. The private law quality of the company law means that the proportion of arbitrary clauses in company law norms is greater than that of mandatory provisions, which means that the corporate governance has more space to realize autonomy of will. The depth of corporate autonomy depends on the design of the required structure of company law norms. As a default rule, the articles of association, as a kind of default rule, give the relative choice to the corporate governance to exclude the preset provisions of the company law. To a certain extent, indirectly widen the space of corporate autonomy. The number of "additional provisions" in the articles of association depends on the proper balance between the mandatory clause and the arbitrary clause. The default rules have not been amended and added in the amendment of the Company Law of China in 2014. As a default rule, the articles of Association of Company Law of our country should apply more than the existing 6 articles of Company Law. By referring to the default normative design of company law in foreign countries and Taiwan and combining its current legislative background, this paper focuses on the articles of association of shareholders' meeting and board of directors, which are "otherwise stipulated". As the core of the company's operation, the shareholders' meeting and the board of directors, the design of the articles of association reflects the openness of the company's autonomy. Comparing with the existing provisions of the Company Law of our country, the provisions of the shareholders' self-interest rights, such as equity, inheritance, profit distribution and so on, are mostly the same, and they all basically respect the autonomy of the shareholders' will, and the shareholders themselves design the distribution rules of the economic rights. In terms of procedure, foreign articles such as the articles of association "otherwise stipulated" have greater openness, and many procedural rules are designed in a more concrete way to give consideration to the concept of humanization, and to protect the rights of shareholders and to take into account more obligations. For example, the number of attendees, the venue of the meeting, the number of board members and the age limit are mostly designed by default clause. Drawing on the above default provisions can make up for the design defects in the procedural norms of the Company Law of China. Consider whether the Company Law of our country can supplement and perfect the procedure and system of the company governance model, shareholders' meeting, board of directors' meeting, convocation, voting and other relevant procedural matters and the deficiencies of the independent director system, and perfect the inherent defects of the procedure and system. Will its fine adjustment into the articles of association "other provisions", greatly strengthen the flexibility of these provisions, grasp the current market allocation of resources as the center of China's reform requirements, with the world legislative trend with the times?
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.291.91
本文编号：2219204
[Abstract]:As one of the default rules, the articles of Association, which reconcile the mandatory and arbitrary norms, are regarded as the "buffer zone" of the company law norms. As one of the components of the standard of company law, its value can not be underestimated in the company practice. In 2005, the amendment of the Company Law expanded the "additional provisions" to six existing articles. In the background of modern company law advocating corporate autonomy, it seems too narrow, which is far from enough to solve the problems encountered in the practice and development of company law. Under the trend of emphasizing corporate autonomy in many countries in the world, the proportion of arbitrariness clauses in our company law is obviously not comparable to that in developed countries, and the application of default clauses is not wide enough. On the basis of the theory of contract, the small scope application of the default rules in the company law of our country has not brought into full play the value of its efficiency and convenience as a contract model. The breadth of modern corporate autonomy depends on the qualitative nature of the company law. The private law quality of the company law means that the proportion of arbitrary clauses in company law norms is greater than that of mandatory provisions, which means that the corporate governance has more space to realize autonomy of will. The depth of corporate autonomy depends on the design of the required structure of company law norms. As a default rule, the articles of association, as a kind of default rule, give the relative choice to the corporate governance to exclude the preset provisions of the company law. To a certain extent, indirectly widen the space of corporate autonomy. The number of "additional provisions" in the articles of association depends on the proper balance between the mandatory clause and the arbitrary clause. The default rules have not been amended and added in the amendment of the Company Law of China in 2014. As a default rule, the articles of Association of Company Law of our country should apply more than the existing 6 articles of Company Law. By referring to the default normative design of company law in foreign countries and Taiwan and combining its current legislative background, this paper focuses on the articles of association of shareholders' meeting and board of directors, which are "otherwise stipulated". As the core of the company's operation, the shareholders' meeting and the board of directors, the design of the articles of association reflects the openness of the company's autonomy. Comparing with the existing provisions of the Company Law of our country, the provisions of the shareholders' self-interest rights, such as equity, inheritance, profit distribution and so on, are mostly the same, and they all basically respect the autonomy of the shareholders' will, and the shareholders themselves design the distribution rules of the economic rights. In terms of procedure, foreign articles such as the articles of association "otherwise stipulated" have greater openness, and many procedural rules are designed in a more concrete way to give consideration to the concept of humanization, and to protect the rights of shareholders and to take into account more obligations. For example, the number of attendees, the venue of the meeting, the number of board members and the age limit are mostly designed by default clause. Drawing on the above default provisions can make up for the design defects in the procedural norms of the Company Law of China. Consider whether the Company Law of our country can supplement and perfect the procedure and system of the company governance model, shareholders' meeting, board of directors' meeting, convocation, voting and other relevant procedural matters and the deficiencies of the independent director system, and perfect the inherent defects of the procedure and system. Will its fine adjustment into the articles of association "other provisions", greatly strengthen the flexibility of these provisions, grasp the current market allocation of resources as the center of China's reform requirements, with the world legislative trend with the times?
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前7条
1 伍坚;;论公司法上的缺省性规则——兼评新《公司法》相关规定之得失[J];法学;2007年05期
2 赵忠奎;;公司章程“另有规定”之司法裁判逻辑[J];安徽大学法律评论;2012年01期
3 胡颖颖;;再论公司章程之“另有规定”[J];江西金融职工大学学报;2010年03期
4 钱玉林;;公司章程“另有规定”检讨[J];法学研究;2009年02期
5 蒋大兴,金剑锋;论公司法的私法品格——检视司法的立场[J];南京大学学报(哲学.人文科学.社会科学版);2005年01期
6 伍坚;;缺省性公司法规则的角色:基于股东自治缺陷的分析[J];河南省政法管理干部学院学报;2010年02期
7 罗培新;;公司法强制性与任意性边界之厘定:一个法理分析框架[J];中国法学;2007年04期
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