破产重整中股东权益保护研究
发布时间：2019-07-09 15:53
【摘要】：2007年施行的《中华人民共和国企业破产法》(以下简称《破产法》)对公司的破产重整程序作出了相关规定,其中第六章和第七章的规定大多体现了对债权人权益的保障,对于重整公司股东(以下简称“股东”)在重整中的权益尽管在《破产法》中亦有所提及,但相关规定大多过于原则性,具体保护机制和规则均未作出明确规定。我国《破产法》作为指导重整的准则,股东在重整中法律地位的不明确和权益保护的缺乏,极易造成重整实务中对股东权益保护的忽视。对于公司重整来讲,最核心、最重要的环节就是制定一个合理可行的重整计划,因为一个好的重整计划可能挽救一个即将瓦解的公司,使它起死回生,所以如果重整计划制定得当,后续的执行工作就会简单很多。股东在自重整程序的启动至重整计划的制定这一过程中应当享有的权利主要涉及重整申请权、知情权、参与权和表决权,切实保障股东这几项权利的行使,则可实现对股东权益更好地保障。因此,本文从股东应享有的这几项权利出发,通过结合《破产法》的相关规定分析股东在行使权利时存在的诸如股东申请重整的限制条件过多、股东知悉重整进程的信息匮乏、股东不能充分参与到重整程序中以及股东对重整计划草案的表决机制不具体等问题,并进一步结合我国重整的实际情况、借鉴其他国家和地区的立法例提出了适当放宽股东申请重整的限制条件、明确股东了解重整进程的渠道、通过赋予股东制定重整计划草案的资格并设立股东委员会等方式真正实现股东的重整参与权、出资人组对重整计划草案的表决应考虑采用混合型表决规则等完善建议。
[Abstract]:The Enterprise bankruptcy Law of the people's Republic of China (hereinafter referred to as the bankruptcy Law), which came into effect in 2007, has made relevant provisions on the bankruptcy reorganization procedure of the company, in which the provisions of chapters VI and VII mostly reflect the protection of the rights and interests of creditors, and the rights and interests of shareholders of the reorganization company (hereinafter referred to as "shareholders") in the reorganization are also mentioned in the bankruptcy Law, but most of the relevant provisions are too principled. Specific protection mechanisms and rules are not clearly defined. As the criterion to guide the reorganization, the unclear legal status and the lack of protection of rights and interests of shareholders in the reorganization of our country can easily lead to the neglect of the protection of shareholders' rights and interests in the practice of reorganization. For the reorganization of the company, the most important link is to make a reasonable and feasible reorganization plan, because a good reorganization plan may save a company that is about to collapse and bring it back to life, so if the reorganization plan is properly formulated, the follow-up implementation will be much easier. The rights that shareholders should enjoy in the process of starting the self-reorganization procedure and formulating the reorganization plan mainly involve the right to apply for reorganization, the right to know, the right to participate and the right to vote, and to ensure the exercise of these rights of shareholders, which can better protect the rights and interests of shareholders. Therefore, starting from these rights that shareholders should enjoy, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information about shareholders' knowledge of the reorganization process, inability of shareholders to participate fully in the reorganization process and the lack of specific voting mechanism of shareholders on the draft reorganization plan, and further combining with the actual situation of the reorganization in our country, and by combining with the relevant provisions of the bankruptcy Law, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information on the reorganization process, Drawing lessons from the legislative examples of other countries and regions, this paper puts forward some suggestions on how to relax the restrictions on shareholders' application for reorganization, clarify the channels for shareholders to understand the process of reorganization, and truly realize the right of shareholders to participate in reorganization by giving shareholders the qualification to formulate the draft reorganization plan and set up shareholders' committees. The investors' group should consider adopting mixed voting rules and other perfect suggestions for the voting of the draft reorganization plan.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.92
本文编号：2512260
[Abstract]:The Enterprise bankruptcy Law of the people's Republic of China (hereinafter referred to as the bankruptcy Law), which came into effect in 2007, has made relevant provisions on the bankruptcy reorganization procedure of the company, in which the provisions of chapters VI and VII mostly reflect the protection of the rights and interests of creditors, and the rights and interests of shareholders of the reorganization company (hereinafter referred to as "shareholders") in the reorganization are also mentioned in the bankruptcy Law, but most of the relevant provisions are too principled. Specific protection mechanisms and rules are not clearly defined. As the criterion to guide the reorganization, the unclear legal status and the lack of protection of rights and interests of shareholders in the reorganization of our country can easily lead to the neglect of the protection of shareholders' rights and interests in the practice of reorganization. For the reorganization of the company, the most important link is to make a reasonable and feasible reorganization plan, because a good reorganization plan may save a company that is about to collapse and bring it back to life, so if the reorganization plan is properly formulated, the follow-up implementation will be much easier. The rights that shareholders should enjoy in the process of starting the self-reorganization procedure and formulating the reorganization plan mainly involve the right to apply for reorganization, the right to know, the right to participate and the right to vote, and to ensure the exercise of these rights of shareholders, which can better protect the rights and interests of shareholders. Therefore, starting from these rights that shareholders should enjoy, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information about shareholders' knowledge of the reorganization process, inability of shareholders to participate fully in the reorganization process and the lack of specific voting mechanism of shareholders on the draft reorganization plan, and further combining with the actual situation of the reorganization in our country, and by combining with the relevant provisions of the bankruptcy Law, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information on the reorganization process, Drawing lessons from the legislative examples of other countries and regions, this paper puts forward some suggestions on how to relax the restrictions on shareholders' application for reorganization, clarify the channels for shareholders to understand the process of reorganization, and truly realize the right of shareholders to participate in reorganization by giving shareholders the qualification to formulate the draft reorganization plan and set up shareholders' committees. The investors' group should consider adopting mixed voting rules and other perfect suggestions for the voting of the draft reorganization plan.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.92
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