职业经理人的法律地位研究

发布时间：2018-05-05 06:51

本文选题：经理 + 职业经理人　；参考：《西南政法大学》2011年硕士论文

【摘要】：随着现代公司制度的日益发展和不断完善,职业经理人作为公司治理中的一个重要阶层应运而生,给公司的发展提供了必不可少的动力支持和智力保障,为经济的发展、社会的进步发挥了了巨大的作用。为实现公司目的的需要,已出现公司权力中心由董事会向经理层发生移转的趋势,各国立法赋予公司经理们以更大的权利,使其在公司权力体系中代替企业所有者的位置,登上了公司权力阶梯的顶层,成为公司权力的重要一极。从而使得少数职业经理人控制公司、滥用公司职权,不断侵蚀公司、股东、董事会权益的现象层出不穷。而这些问题实质上均主要涉及到职业经理人权利与义务边界的界定,以及如何科学合理的配置其权利和义务,从而找到职业经理人权力与义务的平衡点,明确职业经理人的法律地位。处于防止职业经理人滥用职权恶意损害相关方利益的迫切需要,我们需要明确职业经理人权利与义务的法律界限,将职业经理人的权利义务构建在一个合理恰当的位置,更好的保护各利益相关方的合法权益。本文基于国美控制权案的启发,结合了我国公司法、上市公司治理准则、职业经理人职业标准等相关法律条文,使用了理论与实践相结合、比较分析等研究方法,重新审视理论界关于我国职业经理人的义务、权利的相关立法,对职业经理人权利义务界定的相关问题进行比较评析,并剖析了公司职业经理人权利与义务的边界,分析了我国职业经理人法律地位规定的缺陷,同时提出了我国未来关于完善职业经理人法律地位的构想,试图努力找到公司职业经理人权利与义务的平衡点,希望为构建科学合理的经理人权利义务配置结构提供理论和实践指导,力求从立法高度上对职业经理人法律地位予以明确,以期为解决该世界性难题尽一份绵薄之力。本文除结束语外,共分四个部分。从典型案例出发,就司法实践中出现的职业经理人权利义务界定模糊等一系列法律问题,结合域外及国内立法例之考察,对职业经理人权利义务界定的相关问题进行比较评析,最后就我国现行公司法对相关法律问题的规定和保护之不足以及构建科学合理的经理人权利义务配置结构等方面进行了较为充分的论述。第一部分是问题的提出。由典型案例——国美电器控制权案引出主要法律问题,并就此法律问题进一步阐明改进和完善职业经理人法律地位等制度的必要性及基本出发点。第二部分是对现行的职业经理人法律地位立法的评析。从界定经理、职业经理人概念出发,进一步对职业经理人的义务和权利分别进行了立法考察,并对多元法律关系下职业经理人地位进行了考察,同时结合实务厘清职业经理人与公司内部相关主体之间的利害关系,从而明确职业经理人的法律地位。第三部分对我国职业经理人法律地位规定的缺陷以及缺陷产生的原因进行了评析。总结并评析我国关于职业经理人权利义务制度的相关规定,弄清利弊,结合我国基本国情找出原因,以期能对我国职业经理人权利义务边界问题的修订有所启发。第四部分是完善我国职业经理人权利义务制度构想。针对我国职业经理人法律地位存在的缺陷,在总结前人研究成果的基础上,明确指导思想,从立法体例、义务规制、权利完善、监督激励机制以及职业经理人市场的培育等方面明确我国职业经理人权利义务边界,进而全面确定职业经理人的法律地位。
[Abstract]:With the development and continuous improvement of the modern company system, the professional managers, as an important stratum in the corporate governance, came into being, providing the necessary dynamic support and intellectual guarantee for the development of the company, which has played a great role in the development of the economy and the progress of the society. The power center of the company is transferred from the board of directors to the manager level. The legislation endows the managers with greater rights and makes them replace the owners in the company's power system, ascends the top of the company's power ladder, and becomes the important pole of the company's power, thus making the few professional managers control the company. The phenomenon of constantly eroding the rights and interests of the company, the shareholders and the board of directors has been constantly eroded with the power of the company. These issues are essentially mainly related to the definition of the rights and obligations of the professional managers, and how to allocate their rights and obligations scientifically and rationally, thus finding the balance point of the power and duty of the professional managers and defining the professional managers. In order to prevent professional managers from abusing their powers to harm their interests, we need to clear the legal boundaries of the rights and obligations of professional managers, build the rights and obligations of professional managers in a reasonable and appropriate position, and better protect the legitimate rights and interests of all stakeholders.
This paper, based on the Enlightenment of the Gome control case, combines the company law of China, the governance standards of the listed companies, the professional managers' professional standards and other relevant legal provisions. It uses the combination of theory and practice, comparative analysis and other research methods, and reexamines the relevant legislation of the theorists on the duties and rights of professional practitioners in our country, and to the professional managers. This paper makes a comparison and analysis of the related issues of the definition of rights and obligations, analyzes the boundary between the rights and obligations of the professional managers of the company, analyzes the defects of the legal status of professional managers in China, and puts forward the conception of the future of our country to improve the legal status of professional managers, and tries to find the rights and obligations of the professional managers of the company. The balance point is expected to provide theoretical and practical guidance for the construction of a scientific and reasonable manager's rights and obligation configuration structure, and strive to clarify the legal status of professional managers from the legislative height, in order to do a little effort to solve the world problem.
In addition to the concluding remarks, this article is divided into four parts. From a typical case, a series of legal problems, such as the definition of the rights and obligations of professional managers in judicial practice, are defined, and a comparative evaluation is made on the related issues of the definition of the rights and obligations of professional managers by the inspection of foreign and domestic legislation. The relevant legal issues and the lack of protection, as well as the construction of a scientific and reasonable manager rights and obligations configuration structure are fully discussed.
The first part is the proposal of the problem. From the typical case, the case of the control right of Gome electric appliance, the main legal problems are drawn up, and the necessity and basic starting point of improving and perfecting the legal status of professional managers on this legal issue are further clarified.
The second part is the evaluation of the legal status legislation of the current professional managers. From the definition of the concept of the manager and the professional manager, the legislative investigation of the duties and rights of the professional managers is further investigated, and the status of the professional managers under the multiple legal relationship is examined, and the professional managers and the company are clarified in practice. The interests of the relevant internal stakeholders, so as to clarify the legal status of professional managers.
The third part reviews the defects of the legal status of professional managers in China and the causes of the defects. It summarizes and evaluates the relevant regulations of the rights and obligations of professional managers in our country, finds out the advantages and disadvantages, and finds out the reasons in combination with the basic national conditions of our country, in order to amend the right and duty boundary of professional managers in China. Some inspiration.
The fourth part is to perfect the concept of the right and duty system of professional managers in our country. In view of the defects of the legal status of professional managers in our country, on the basis of summarizing the achievements of previous research, we clearly guide the thought and clear our country from the aspects of legislative style, obligation regulation, right improvement, supervision and incentive mechanism and the cultivation of professional manager market. Professional managers' rights and obligations boundaries, and then comprehensively determine the legal status of professional managers.

【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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