论我国上市公司董事会制度的完善
发布时间：2019-04-28 21:10
【摘要】：在公司治理的演变过程中,上市公司有别于传统的封闭型公司,是最为现代化的制度安排。董事会制度随公司的出现就基本存在了,在公司治理的变革中,虽然董事会的职能也不断进化,但其自身的传统性原则依然保持着。很多国家和地区的立法和实践中都确立了“董事会中心主义”的公司治理模式,而且大部分国家都明确在成文法中确立了董事会作为公司权力的最高行使者的原则。我国《公司法》一直延袭“股东大会中心主义”的立法模式,虽然在新修订的《公司法》中,董事会的权力比重较以前之立法有所加大,但仍然未能脱离“股东会中心主义”的樊篱。基于上述现状,本文试图以“董事会中心主义”的公司治理模式为切入点,以我国上市公司的董事会制度为研究对象,明确我国上市公司应确立“董事会中心主义”的公司治理模式。针对我国上市公司目前存在的问题,借鉴其他国家上市公司董事会制度的有益经验,对我国上市公司董事会制度予以完善。本文第一部分首先分析了我国上市公司董事会制度立法现状,即阐述了目前我国《公司法》、《上市公司治理准则》、《上市公司章程指引》等相关法律对董事会制度的规定。进而对我国上市公司董事会制度的运行现状进行分析,包括分析比较我国上市公司董事会制度的运行背景与上市公司董事会制度存在问题的原因,进而提出完善我国上市公司董事会制度的理论基础,即董事会中心主义理论。本文第二部分分别阐述了英美法系国家、大陆法系国家以及台湾地区的上市公司董事会制度的运作状况,运用比较分析方法来探究这些国家和地区上市公司董事会制度的区别,从而为我国上市公司董事会制度的改进提供有益借鉴。本文第三部分重点探析了我国上市公司董事会制度存在的问题,从董事会内外部机制去阐述当前我国上市公司董事会制度存在的问题,内部机制如董事会法律地位的界定、董事会结构、独立董事问题等,外部机制如董事会与股东会权力界限不清、监事会监督职能的有限性等。本文第四部分是重中之重,针对第三部分我国上市公司董事会制度存在的问题,在我国理论界对上市公司董事会制度已有研究的基础上,同时借鉴其他国家和地区上市公司董事会制度的经验,提出相应的完善意见,如董事会内部的完善、董事会与股东大会职权的合理界定、董事会监督制度的完善等。在“董事会中心主义”的背景下,董事会作为上市公司的经营决策机构,其作用可见一斑,因此优化董事会制度对我国上市公司健康有序的发展具有重要意义。
[Abstract]:In the evolution of corporate governance, the listed company is different from the traditional closed-ended company, is the most modern institutional arrangement. The board of directors system basically exists with the appearance of the company. In the change of corporate governance, although the functions of the board of directors are evolving constantly, the traditional principle of its own is still maintained. The "board of directors" model of corporate governance has been established in the legislation and practice of many countries and regions, and most countries have clearly established the principle of the board of directors as the supreme agent of corporate power in the statute law. The Company Law of our country has been following the legislative model of "shareholder meeting centralism" all the time, although in the newly revised Company Law, the proportion of the board of directors' power is larger than that of the previous legislation. But still failed to break away from the "stockholder centralism" barriers. Based on the above-mentioned situation, this paper attempts to take the "board of directors" corporate governance model as the starting point, and the board system of listed companies in China as the research object. It is clear that listed companies in China should establish the corporate governance model of "board of directors centralism". In view of the existing problems of listed companies in China, the board of directors system of listed companies in China is improved by drawing lessons from the beneficial experiences of other countries in the board of directors of listed companies. The first part of this paper first analyzes the current situation of the board of directors system legislation of listed companies in China, that is to say, it expounds the regulations on the board system of the board of directors in China, such as the Company Law, the Rule of Governance of listed companies, and the Guide to the articles of Association of listed companies. Then it analyzes the current situation of the board of directors system of listed companies in China, including the analysis and comparison of the operating background of the board system of listed companies in China and the reasons for the problems existing in the board system of listed companies. Then it puts forward the theoretical basis of perfecting the board of directors system of listed companies in China, that is, the theory of board of directors centralism. In the second part of this paper, the author expounds the state of the board of directors of listed companies in common law countries, civil law countries and Taiwan regions, and probes into the differences between the board systems of listed companies in these countries and regions by means of comparative analysis. In order to provide a useful reference for the improvement of the board of directors system of listed companies in our country. The third part of this paper focuses on the analysis of the problems existing in the board system of the listed companies in China, and expounds the problems existing in the board system of the listed companies in China from the internal and external mechanisms, such as the definition of the legal status of the board of directors. Board structure, independent director issues, etc., external mechanisms such as board of directors and shareholders' meeting power is not clear, supervisory board supervision function is limited and so on. The fourth part of this paper is the most important. In view of the problems existing in the board of directors system of listed companies in our country, on the basis of the research on the board system of listed companies in the theoretical field of our country, At the same time, based on the experience of other countries and regions, some suggestions are put forward, such as the perfection of the board of directors, the rational definition of the functions and powers of the board of directors and the shareholders' general meeting, the perfection of the board of directors' supervision system and so on. Under the background of "board centralism", the role of board of directors as a decision-making body of listed companies is evident. Therefore, optimizing the board of directors system is of great significance for the healthy and orderly development of listed companies in China.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
[Abstract]:In the evolution of corporate governance, the listed company is different from the traditional closed-ended company, is the most modern institutional arrangement. The board of directors system basically exists with the appearance of the company. In the change of corporate governance, although the functions of the board of directors are evolving constantly, the traditional principle of its own is still maintained. The "board of directors" model of corporate governance has been established in the legislation and practice of many countries and regions, and most countries have clearly established the principle of the board of directors as the supreme agent of corporate power in the statute law. The Company Law of our country has been following the legislative model of "shareholder meeting centralism" all the time, although in the newly revised Company Law, the proportion of the board of directors' power is larger than that of the previous legislation. But still failed to break away from the "stockholder centralism" barriers. Based on the above-mentioned situation, this paper attempts to take the "board of directors" corporate governance model as the starting point, and the board system of listed companies in China as the research object. It is clear that listed companies in China should establish the corporate governance model of "board of directors centralism". In view of the existing problems of listed companies in China, the board of directors system of listed companies in China is improved by drawing lessons from the beneficial experiences of other countries in the board of directors of listed companies. The first part of this paper first analyzes the current situation of the board of directors system legislation of listed companies in China, that is to say, it expounds the regulations on the board system of the board of directors in China, such as the Company Law, the Rule of Governance of listed companies, and the Guide to the articles of Association of listed companies. Then it analyzes the current situation of the board of directors system of listed companies in China, including the analysis and comparison of the operating background of the board system of listed companies in China and the reasons for the problems existing in the board system of listed companies. Then it puts forward the theoretical basis of perfecting the board of directors system of listed companies in China, that is, the theory of board of directors centralism. In the second part of this paper, the author expounds the state of the board of directors of listed companies in common law countries, civil law countries and Taiwan regions, and probes into the differences between the board systems of listed companies in these countries and regions by means of comparative analysis. In order to provide a useful reference for the improvement of the board of directors system of listed companies in our country. The third part of this paper focuses on the analysis of the problems existing in the board system of the listed companies in China, and expounds the problems existing in the board system of the listed companies in China from the internal and external mechanisms, such as the definition of the legal status of the board of directors. Board structure, independent director issues, etc., external mechanisms such as board of directors and shareholders' meeting power is not clear, supervisory board supervision function is limited and so on. The fourth part of this paper is the most important. In view of the problems existing in the board of directors system of listed companies in our country, on the basis of the research on the board system of listed companies in the theoretical field of our country, At the same time, based on the experience of other countries and regions, some suggestions are put forward, such as the perfection of the board of directors, the rational definition of the functions and powers of the board of directors and the shareholders' general meeting, the perfection of the board of directors' supervision system and so on. Under the background of "board centralism", the role of board of directors as a decision-making body of listed companies is evident. Therefore, optimizing the board of directors system is of great significance for the healthy and orderly development of listed companies in China.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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4 周s，
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