国有股监事法律制度研究

发布时间：2018-07-25 07:11

【摘要】：由于派出机关的特殊性,国有股监事与一般监事在任职资格、职权范围以及法律责任的承担与追究等方面都有很大的不同。对国有股监事法律制度展开深入的研究,这不仅对我国国有企业内部治理结构的完善有很大的促进作用,而且对我国国有资产的保值增值有非常重要的意义。国有股监事一方面是由国资委派出对国有企业进行监管的代表,另一方面又是通过国有股权进入国有企业后的监事会的成员,身份上的双重性决定了其不仅要向派出机关负责,还要向所有股东负责,对国有控股公司和国有参股公司来说,除了国有股以外,还有其他股东。正是由于国有股监事的双重身份及属性决定了国有股监事的双重职责,因此,其不仅要履行作为监事的一般职责,还要承担起作为国资委监管代表的责任。特殊的监管代表身份决定了国有股监事享有远比一般监事广泛的职权,如法律法规直接规定的权力,投资主体或机构下派的权力等。《公司法》、《企业国有资产法》、《国有企业监事会暂行条例》等法律法规对国有股监事的规定还有很多的不足,相关制度亟待完善。国有股监事由国资委委派,并且常常带有一定的行政级别,但是在实践中,国有股监事仍然很难形成对企业的有效监督,这是体制弊端所造成的。由于国有股监事只是国有资产代理人,并不拥有剩余索取权,企业经营得好坏对其自身利益没有多大影响,在这种情况下,国有股监事缺乏履行监督职能的足够动力,这些都是我国立法亟待解决的问题。强化国有股监事的职能,扩充其职权范围,让国有股监事真正地发挥实质性的监督作用,这是完善国有股监事制度的应有之义。
[Abstract]:Due to the particularity of the dispatched organs, there are great differences between the state-owned supervisors and the general supervisors in terms of their qualifications, terms of reference, and the undertaking and investigation of their legal responsibilities. The in-depth study on the legal system of state-owned stock supervisors not only promotes the improvement of the internal governance structure of state-owned enterprises, but also plays a very important role in maintaining and increasing the value of state-owned assets. On the one hand, the supervisors of state-owned shares are representatives sent by SASAC to supervise state-owned enterprises, on the other hand, they are members of the board of supervisors who enter state-owned enterprises through state-owned shares. The dual nature of their status determines that they should not only be responsible to the dispatched organs. Also accountable to all shareholders, for state-holding companies and state-owned companies, in addition to state-owned shares, there are other shareholders. It is precisely because of the dual status and attributes of the state-owned supervisors that the state-owned supervisors have dual responsibilities. Therefore, they should not only perform their general duties as supervisors, but also bear the responsibility of acting as the supervisory representatives of SASAC The special status of supervisory representative determines that the supervisors of state-owned shares enjoy far more powers than ordinary supervisors, such as the powers directly prescribed by laws and regulations. The laws and regulations, such as "Company Law", "Enterprise State-owned assets Law", "interim regulations on Supervisory Board of State-owned Enterprises", still have many deficiencies in the provisions of state-owned stock supervisors, and the relevant systems need to be improved. State-owned stock supervisors are appointed by SASAC, and often have a certain administrative level, but in practice, it is still very difficult for state-owned stock supervisors to form effective supervision over enterprises, which is caused by the malpractice of the system. Since the state-owned stock supervisors are only agents of state-owned assets and do not have the residual claim rights, the good or bad operation of the enterprises does not have much influence on their own interests. In this case, the state-owned stock supervisors lack sufficient motivation to perform their supervisory functions. These are the problems that our country legislates urgently to solve. It is necessary to strengthen the functions of state-owned supervisors, expand the scope of their functions, and let state-owned supervisors really play a substantial supervisory role, which is the proper meaning of perfecting the state-owned supervision system
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291

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