有限公司股东会计账簿查阅权研究
发布时间：2018-08-18 17:44
【摘要】：随着公司的所有权和经营权的日渐分离,大多数的股东实际上并不直接参与公司的经营管理,股东若要充分行使自己的权利,必须充分地了解对公司的信息,特别是经营信息和财务信息。在现代的公司管理结构中,股东知情权是公司股东享有的一项重要权利,股东知情权规则处于基础地位。在现实生活中,公司侵犯股东知情权的现象依然存在,如何切实有力地保障股东知情权是中国目前公司法律制度必须解决的问题,研究股东知情权的特征和实现机制等一系列问题在理论上和实践上都大有裨益。 新《公司法》第34条引入了有限责任公司股东账簿查阅权,是我国公司立法的一大进步。然而仅一条法律条文并不能完全得保证股东知情权的实现。因此,如何在我国建立较为完善的股东知情权法律制度,如何使股东知情权得以切实的保障等问题,成为了实务界和学界共同关注的焦点。 本文分四章对股东会计账簿查阅权加以阐述和讨论,第二章从公司契约论的角度来对股东权的本质进行契约解释,强调公司股东权的契约属性,进而对作为股东权内容的查阅权进行契约解释,来界定其权利属性,对公司股东查阅权的主体规则、查阅对象范围规则、正当目的规则进行契约论的解释。从而确认股东查阅权的自益权与共益权兼具的属性。 第三章主要分两节进行阐述,第一节阐述有限公司普通股东与特殊股东会计账簿查阅权的区别。在这一节中,笔者归纳了几类特殊股东是否应该享有查阅权以及该如何享有。第二节论述股份公司股东是否也应该享有与有限公司股东相同的会计账簿查阅权。在新公司法中仅仅规定了有限责任公司的股东会计账簿查阅权,但对股份公司的股东尚未规定,本节论述股份公司的股东是否有必要同样授予会计账簿查阅权,以及是否该给予必要限制,如何限制,直至取消限制。 第四章,主要研究可否对原始会计凭证的查阅权。新《公司法》第34条第一款、第二款规定的股东查阅权的范围包括公司章程、股东会会议记录、董事会会议决议、监事会会议决议、财务会计报告和会计账簿等内容,但对原始会计凭证、存续久远的会计账簿是否能够查阅以及公司章程是否可以对查阅权进行自治等问题没有作出规定。本章重点论述股东是否有权对原始会计凭证进行查阅。 第五章是对股东会计账簿查阅权制度在实践中的运用所进行的研究,即将理论应用到实践中的制度设计,分三节进行阐述：(一)股东查阅权的行使程序(二)股东查阅权的行使受侵害时的权利救济(本节会涉及到举证责任问题的研究)(三)我国股东查阅权制度的完善。
[Abstract]:With the gradual separation of the ownership and management rights of the company, most of the shareholders do not participate in the management of the company directly. If the shareholders want to fully exercise their rights, they must fully understand the information about the company. In particular, business information and financial information. In the modern corporate management structure, shareholders' right to know is an important right enjoyed by shareholders, and the rules of shareholders' right to know are in a basic position. In real life, the phenomenon of company infringing on shareholders' right to know still exists. How to protect shareholders' right to know effectively is a problem that must be solved in China's current corporate legal system. It is beneficial to study the characteristics and realization mechanism of shareholders'right to know in theory and practice. Article 34 of the new Company Law introduces the right to inspect the books of accounts of shareholders of limited liability companies, which is a great progress in the legislation of companies in our country. However, the realization of shareholders' right to know can not be completely guaranteed by a single legal provision. Therefore, how to establish a more perfect legal system of shareholders' right to know and how to ensure the shareholders' right to know has become the focus of attention in practice and academic circles. This article is divided into four chapters to explain and discuss the right of consulting the accounting books of shareholders. The second chapter explains the nature of shareholders' rights from the angle of company contract theory, and emphasizes the contractual attributes of shareholders' rights. Then the right of access as the content of shareholders' rights is explained by contract to define the property of the right and to explain the rules of the subject, the scope of the object and the rule of legitimate purpose of the shareholders of the company. In order to confirm the shareholders of the right of self-interest and the property of the right of mutual benefit. The third chapter is divided into two sections, the first section expounds the difference between the ordinary shareholders and special shareholders. In this section, the author sums up several kinds of special shareholders should enjoy the right of inspection and how to enjoy. The second section discusses whether shareholders should enjoy the same rights of checking accounting books as shareholders of limited companies. In the new company law, only the shareholders of a limited liability company have the right to inspect the accounting books, but the shareholders of a joint stock company are not yet provided with. This section discusses whether it is necessary for shareholders of a joint stock company to grant the same right of access to the books of accounts. And whether the necessary restrictions should be given and how to limit them until they are lifted. The fourth chapter, mainly studies whether to the original accounting certificate inspection right. The scope of the shareholders' inspection rights stipulated in Article 34, paragraph 1 and paragraph 2 of the new Company Law includes articles of association of the company, minutes of shareholders' meetings, resolutions of the directors' meetings, resolutions of the supervisors' meetings, financial and accounting reports and accounting books, etc. However, there are no regulations on whether the original accounting documents, the long-lived accounting books can be consulted and whether the articles of association can autonomy the inspection right. This chapter focuses on whether shareholders have the right to consult the original accounting documents. The fifth chapter is the research on the application of the system of consulting right of stockholders' accounting books in practice, that is, the system design of applying the theory to practice. It is divided into three sections: (1) the procedure of the exercise of the shareholder's right of inspection (2) the remedy of the right when the exercise of the shareholder's right of inspection is infringed (this section will involve the study of the burden of proof) (3) the perfection of the system of the shareholder's right of inspection in our country.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2190211
[Abstract]:With the gradual separation of the ownership and management rights of the company, most of the shareholders do not participate in the management of the company directly. If the shareholders want to fully exercise their rights, they must fully understand the information about the company. In particular, business information and financial information. In the modern corporate management structure, shareholders' right to know is an important right enjoyed by shareholders, and the rules of shareholders' right to know are in a basic position. In real life, the phenomenon of company infringing on shareholders' right to know still exists. How to protect shareholders' right to know effectively is a problem that must be solved in China's current corporate legal system. It is beneficial to study the characteristics and realization mechanism of shareholders'right to know in theory and practice. Article 34 of the new Company Law introduces the right to inspect the books of accounts of shareholders of limited liability companies, which is a great progress in the legislation of companies in our country. However, the realization of shareholders' right to know can not be completely guaranteed by a single legal provision. Therefore, how to establish a more perfect legal system of shareholders' right to know and how to ensure the shareholders' right to know has become the focus of attention in practice and academic circles. This article is divided into four chapters to explain and discuss the right of consulting the accounting books of shareholders. The second chapter explains the nature of shareholders' rights from the angle of company contract theory, and emphasizes the contractual attributes of shareholders' rights. Then the right of access as the content of shareholders' rights is explained by contract to define the property of the right and to explain the rules of the subject, the scope of the object and the rule of legitimate purpose of the shareholders of the company. In order to confirm the shareholders of the right of self-interest and the property of the right of mutual benefit. The third chapter is divided into two sections, the first section expounds the difference between the ordinary shareholders and special shareholders. In this section, the author sums up several kinds of special shareholders should enjoy the right of inspection and how to enjoy. The second section discusses whether shareholders should enjoy the same rights of checking accounting books as shareholders of limited companies. In the new company law, only the shareholders of a limited liability company have the right to inspect the accounting books, but the shareholders of a joint stock company are not yet provided with. This section discusses whether it is necessary for shareholders of a joint stock company to grant the same right of access to the books of accounts. And whether the necessary restrictions should be given and how to limit them until they are lifted. The fourth chapter, mainly studies whether to the original accounting certificate inspection right. The scope of the shareholders' inspection rights stipulated in Article 34, paragraph 1 and paragraph 2 of the new Company Law includes articles of association of the company, minutes of shareholders' meetings, resolutions of the directors' meetings, resolutions of the supervisors' meetings, financial and accounting reports and accounting books, etc. However, there are no regulations on whether the original accounting documents, the long-lived accounting books can be consulted and whether the articles of association can autonomy the inspection right. This chapter focuses on whether shareholders have the right to consult the original accounting documents. The fifth chapter is the research on the application of the system of consulting right of stockholders' accounting books in practice, that is, the system design of applying the theory to practice. It is divided into three sections: (1) the procedure of the exercise of the shareholder's right of inspection (2) the remedy of the right when the exercise of the shareholder's right of inspection is infringed (this section will involve the study of the burden of proof) (3) the perfection of the system of the shareholder's right of inspection in our country.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前1条
1 院滢;论有限责任公司股东财务信息查阅权[D];东北财经大学;2012年
，本文编号：2190211
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