公司董事法律地位研究

发布时间：2018-04-26 17:28

本文选题：董事法律地位 + 信托关系说　；参考：《中国政法大学》2010年硕士论文

【摘要】： 董事法律地位是董事权利、义务在法律上的体现,其核心问题是董事同公司的法律关系。我国公司法学界对于董事法律地位众说纷纭,存在委任关系说、代理与信托兼有说、法定说、特殊关系说等,至今尚无定论。从根本上说,董事权利、义务是因其同公司的关系引起,我国公司法未明确界定董事同公司关系的法律性质,容易导致董事权利不明、义务模糊、权责不对等一系列问题。因此,理清董事与公司的法律关系即董事在公司中的法律地位问题,有助于我们在具体层面上讨论董事的行为依照何种法律关系为基础来决定其法律效果的归属和法律责任的承担问题。不容质疑,公司法虽兼具经济法的属性,但本质上仍为私法,遵循私法自治的原则。考量强制性规范和任意性规范的设定基准,董事与公司的关系实属公司内部关系范畴,更适宜由任意性规范调整。进而考虑董事法律地位的各种学说,通过采取比较研究和利弊分析的方法,本文认为我国公司法在公司和董事之间适宜建立委任关系。一方面由于我国并不存在英美法意义上信托制度的历史背景和法律传统,我国代理制度不仅同英美法系的代理以及大陆法系的代理制度存在差异,而且与我国公司、董事关系的实态相去甚远；另一方面,法定说、信托与代理兼有说等学说,或是因其本身存在无法摆脱的逻辑悖论,抑或是由于其疏于表面且缺陷明显均不宜用以解释董事与公司之间的法律关系。因此,“委任说”的法理较符合董事与公司的法律关系,并与我国的法律传统相一致,尽管我国《民法通则》中没有委任的具体规定,但是我国《合同法》中存在“委托合同”一章,也有利于委任关系在我国确立。明确我国公司董事与公司之间的委任关系,有利于借助委任合同有效规制董事的权利义务：首先,公司与董事通过订立委任合同,规范董事选任与卸任,明确董事权利义务产生和终止时间；其次,根据权责一致原则,针对不同类别董事,考虑其职权侧重以及对公司经营决策的影响,通过订立委任契约确定董事的具体权利和义务以及违反义务导致责任的承担；再次,委任契约有利于弥补公司立法关于董事义务规制的不足。一方面,董事注意义务多为主观形态,不仅立法定性存在一定难度,适用上也难以保证公正性。将董事注意义务范畴交由公司与董事自决,有利于完善董事注意义务并促进其积极履行注意义务；另一方面,董事离任后的忠实义务往往涉及董事基本劳动权,难以用强行法形式加以限制或剥夺。通过委任合同对董事离任后忠实义务的内容、范围、期限等事项作出约定,既避免了法律强行干预,又具备现实针对性和可操作性。复次,基于委任合同,民法上的诚实信用原则以及合同法上的各种合同义务也将得以援引以帮助当事人获得公司法以外的法律救济,进而更好地规制董事义务,维护当事人合法权益。
[Abstract]:The legal status of the director is the embodiment of the director's right and obligation in the law. The core issue is the legal relationship between the director and the company. There are many opinions about the legal status of the directors in our company law field. There is a relationship between the directors and the directors. Because of its relationship with the company, the company law of our country does not clearly define the legal nature of the relationship between the directors and the company, which can easily lead to a series of problems such as unidentified directors, blurry duties and incorrect power and responsibility. Therefore, it is helpful to clarify the legal relationship between the directors and the company, that is, the legal status of the directors in the company. On the basis of which legal relationship, the director's behavior determines the attribution of legal effect and the bearing of legal liability.
It can not be questioned that, although the company law has the attribute of economic law, it is still private law in essence and follows the principle of autonomy of private law. It examines mandatory norms and setting benchmarks for arbitrariness. The relationship between directors and companies is a category of internal relations in the company, and it is more appropriate to be adjusted by arbitrariness. And then the various theories of the legal status of the directors are considered and passed. By means of comparative study and analysis of advantages and disadvantages, this article holds that the company law of our country is suitable for establishing the appointment relationship between the company and the directors. On the one hand, our agency system is not only with the agency of the Anglo American law department and the agency system of the continental law system because there is no historical background and legal tradition of the trust system in the sense of Anglo American Law in China. In contrast, it is far from the reality of the relationship between companies and directors in our country; on the other hand, it is legally said that the doctrine of "trust" and "agent" theory, or the logical paradox that its own existence cannot be rid of, or because it is unsuitable to explain the legal relationship between the director and the company. "The legal theory of" is more consistent with the legal relationship between the director and the company, and is consistent with the legal tradition of our country. Although there is no specific provisions in the general rules of the civil law of China, there is a chapter of the "entrustment contract" in the contract law of our country, which is also beneficial to the establishment of the appointment relationship in our country.
To clarify the appointment relationship between the directors and the companies in our country is conducive to the effective regulation of the rights and obligations of the directors by the appointment contract. First, the company and the director pass the appointment contract to standardize the selection and discharge of the directors and clear the time of the director's rights and obligations to produce and terminate. Secondly, according to the principle of consistent power and responsibility, the directors of different categories of directors, Considering the emphasis of its authority and the influence on the company's management decision, the specific rights and obligations of the directors are determined by the contract of appointment, and the responsibility is responsible for the breach of duty. Again, the appointment contract is beneficial to make up for the lack of the regulation of the directors' obligations in the company's legislation. On the one hand, the directors' duty of attention is mostly subjective and not only legislation. It is difficult to make a certain degree of difficulty and it is difficult to ensure fairness in the application. It is beneficial to improve the duty of attention of the directors and to promote the active duty of attention by the company and the director. On the other hand, the duty of loyalty after the departure of the director often involves the basic labor rights of the directors and is difficult to be restricted by the form of strong law. Or deprivation. The content, scope and duration of the duty of loyalty after the appointment of the director, through the appointment contract, not only avoids the legal intervention, but also has realistic pertinence and maneuverability. The second order, based on the appointment contract, the principle of honesty and credit in civil law, and the various contractual obligations of the contract law will also be invoked to help. Those who obtain legal relief outside the company law can better regulate the directors' obligations and safeguard the legitimate rights and interests of the parties concerned.

【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

【参考文献】