外部监事路径下的债权人参与公司治理
发布时间：2018-07-27 11:46
【摘要】：现有公司法律体系中存在多种保护债权人利益的制度措施,如公司资本制度、公司事务公开制度、公司法人格否认制度以及破产清算制度等等。不可否认,这些制度对债权人保护起到了积极作用。但这些制度无一例外的具有被动性和事后性的特点,从而使其在债权人保护方面具有相当的局限性。也正是由于这些局限性使债权人在目前我国公司法制下处于不利地位,如果不能适当调整债权人在整个公司制度中的利益格局,必将使其在与公司的业务往来中顾虑重重,从而消减公司作为市场经济重要主体的功能。 要想使债权人利益得到有效保护,就必须改变将其排除在公司治理主体之外的观念,使其主动的参与到公司治理当中,让其意志能够在公司体制中得以表达。而要使债权人参与到公司治理当中,就必须赋予其特定身份,使其以此为依托行使相应职权。本文以为,债权人以外部监事身份参与治理是一个理想的选择。一方面,监事会因缺乏独立性和专业性而普遍虚化;另一方面,为了实现对债权人利益的保护,需要其参与到公司治理当中,而作为监督者身份参与治理应是对其合理的定位。两者正是在此基础上达成了某种契合。 本文正是沿着上述脉络展开探讨的。 第一章在揭示了公司债权人保护的意义和现有保护制度的不足以及产生根源的基础上,得出了要想根本上改变债权人在公司制度中的弱势地位就必须使其以主体身份参与到公司治理当中; 第二章在第一章得出债权人不应游离于公司治理之外这一结论的基础上,从利益相关者理论出发,探讨了债权人参与公司治理的理论基础和各国的实践经验,为其参与公司治理寻求可行性; 第三章在第二章得出公司债权人具有参与公司治理的可行性的结论之后,探讨了债权人应选择外部监事这一路径参与到公司治理当中,并进行了详细论证; 第四章分析了以债权人身份出任外部监事的具体程序和职责,试图构建一套外部监事路径下的债权人参与公司治理新模式,以期达到保护债权人的目的。 在结论当中,对全文给予回顾和总结,并对论文的局限和未能解决的问题进行了说明。 此外,债权人是一个类概念,由于本人学识和精力所限,本文仅就银行债权人这一特定类型进行探讨,在此特别说明。
[Abstract]:There are a variety of measures to protect the interests of creditors in the existing corporate legal system, such as corporate capital system, corporate affairs disclosure system, corporate personality denial system and bankruptcy liquidation system, and so on. Undeniably, these systems have played a positive role in the protection of creditors. However, these systems have the characteristics of passivity and hindsight without exception, which makes them limited in the protection of creditors. It is precisely because of these limitations that creditors are in a disadvantageous position under the current corporate legal system of our country. If the benefit pattern of creditors in the whole company system cannot be properly adjusted, it will certainly make them worry a lot in their business dealings with the company. In order to reduce the company as an important part of the market economy function. In order to protect the interests of creditors effectively, we must change the idea of excluding them from the main body of corporate governance, so that they can actively participate in the corporate governance, so that their will can be expressed in the corporate system. In order to make creditors participate in corporate governance, they must be given a specific identity and exercise their functions and powers based on it. This paper believes that creditor participation in governance as an external supervisor is an ideal choice. On the one hand, the board of supervisors is generally fictitious because of its lack of independence and professionalism; on the other hand, in order to protect the interests of creditors, it needs them to participate in corporate governance, and participation in governance as a supervisor should be its reasonable position. It is on this basis that the two reached a certain agreement. This paper is just along the above-mentioned context of the discussion. The first chapter reveals the significance of the protection of corporate creditors, the deficiencies of the existing protection system and the root causes. It is concluded that in order to fundamentally change the weak position of creditors in the corporate system, we must make them participate in the corporate governance as the main body; the second chapter in the first chapter concludes that creditors should not dissociate from corporate governance. On the basis of this conclusion, Based on stakeholder theory, this paper discusses the theoretical basis of creditor participation in corporate governance and the practical experience of various countries. In chapter three, after the conclusion that the company creditor has the feasibility of participating in corporate governance, the author discusses that the creditor should choose the path of external supervisor to participate in the corporate governance, the third chapter draws the conclusion that the creditor has the feasibility of participating in the corporate governance, and discusses that the creditor should choose the path of external supervisor to participate in the corporate governance. The fourth chapter analyzes the procedure and responsibility of taking the position of creditor as external supervisor, and tries to build a new model of creditor participating in corporate governance under the path of external supervisor. In order to achieve the purpose of protecting creditors. In the conclusion, the author reviews and summarizes the full text, and explains the limitations of the paper and the problems that can not be solved. In addition, the creditor is a kind of concept. Due to the limitation of my knowledge and energy, this paper only discusses this particular type of bank creditor, which is specially explained here.
【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】：D912.29
本文编号：2147721
[Abstract]:There are a variety of measures to protect the interests of creditors in the existing corporate legal system, such as corporate capital system, corporate affairs disclosure system, corporate personality denial system and bankruptcy liquidation system, and so on. Undeniably, these systems have played a positive role in the protection of creditors. However, these systems have the characteristics of passivity and hindsight without exception, which makes them limited in the protection of creditors. It is precisely because of these limitations that creditors are in a disadvantageous position under the current corporate legal system of our country. If the benefit pattern of creditors in the whole company system cannot be properly adjusted, it will certainly make them worry a lot in their business dealings with the company. In order to reduce the company as an important part of the market economy function. In order to protect the interests of creditors effectively, we must change the idea of excluding them from the main body of corporate governance, so that they can actively participate in the corporate governance, so that their will can be expressed in the corporate system. In order to make creditors participate in corporate governance, they must be given a specific identity and exercise their functions and powers based on it. This paper believes that creditor participation in governance as an external supervisor is an ideal choice. On the one hand, the board of supervisors is generally fictitious because of its lack of independence and professionalism; on the other hand, in order to protect the interests of creditors, it needs them to participate in corporate governance, and participation in governance as a supervisor should be its reasonable position. It is on this basis that the two reached a certain agreement. This paper is just along the above-mentioned context of the discussion. The first chapter reveals the significance of the protection of corporate creditors, the deficiencies of the existing protection system and the root causes. It is concluded that in order to fundamentally change the weak position of creditors in the corporate system, we must make them participate in the corporate governance as the main body; the second chapter in the first chapter concludes that creditors should not dissociate from corporate governance. On the basis of this conclusion, Based on stakeholder theory, this paper discusses the theoretical basis of creditor participation in corporate governance and the practical experience of various countries. In chapter three, after the conclusion that the company creditor has the feasibility of participating in corporate governance, the author discusses that the creditor should choose the path of external supervisor to participate in the corporate governance, the third chapter draws the conclusion that the creditor has the feasibility of participating in the corporate governance, and discusses that the creditor should choose the path of external supervisor to participate in the corporate governance. The fourth chapter analyzes the procedure and responsibility of taking the position of creditor as external supervisor, and tries to build a new model of creditor participating in corporate governance under the path of external supervisor. In order to achieve the purpose of protecting creditors. In the conclusion, the author reviews and summarizes the full text, and explains the limitations of the paper and the problems that can not be solved. In addition, the creditor is a kind of concept. Due to the limitation of my knowledge and energy, this paper only discusses this particular type of bank creditor, which is specially explained here.
【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】：D912.29
【引证文献】
相关硕士学位论文 前1条
1 孔维国;我国一人公司现状及法律治理研究[D];广西师范大学;2012年
，本文编号：2147721
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2147721.html
