公司捐赠的利益冲突与权利制约研究
发布时间：2018-12-20 10:50
【摘要】： 公司捐赠制度对市场经济和公司自身的发展有着重要的意义,是现代公司法上一项重要的法律制度。随着经济的发展与社会的进步,公司自身的经济实力不断增强,公司在追求股东利益最大化目标的同时给社会造成的影响也在不断扩大。公司社会责任理论应运而生,它强调公司在追求股东利益最大化的同时应当最大限度地关怀和增进股东利益之外的其他所有社会利益。公司捐赠是公司承担社会责任增进社会福利的直接表现形式。 目前,在我国的公益事业中,公司捐赠已经成为主要的贡献力量。由于法律法规对公司捐赠规定的不完善,公司捐赠在实践中存在诸多问题,如公司虚假捐赠、公司恶意捐赠以逃避债务、公司捐赠承诺不兑现等等。这些行为损害了公司捐赠利益主体的合法权益,不利于维护社会公益。公司捐赠的具体制度设计要体现股东利益、公司利益和社会利益的平衡,主要表现为公司捐赠的认定、捐赠决策权的归属、捐赠数额与对象的确定,以及利益主体权益的救济机制。在立法不完善的情况下,只有在公司内部通过对公司捐赠决策权加以安排、细化公司董事对公司的受信义务、明确公司捐赠的数额、对象与决策程序等方式来约束公司捐赠行为。而在公司外部,需要利益主体运用《公司法》、《合同法》的规定救济自身权利以矫正不适当的公司捐赠行为。法律规制的最终目的是既鼓励公司捐赠,又能维护股东和公司利益,在公司捐赠中实现股东利益、公司利益和社会利益的平衡,从而促进社会的和谐发展。
[Abstract]:The corporate donation system is of great significance to the market economy and the development of the company itself, and is an important legal system in the modern company law. With the development of the economy and the progress of the society, the economic strength of the company itself is increasing, and the influence of the company on the society is expanding while pursuing the goal of maximizing the interests of the shareholders. The theory of corporate social responsibility emerges as the times require, which emphasizes that the company should care for and promote all other social interests other than shareholders' interests at the same time as it pursues the maximization of shareholders' interests. Corporate donation is the direct form of corporate social responsibility to promote social welfare. At present, in our country's public welfare undertakings, corporate donation has become the main contribution. Due to the imperfection of laws and regulations on corporate donation, there are many problems in the practice of corporate donation, such as false donation, malicious donation to avoid debt, dishonour of corporate donation promise and so on. These behaviors damage the legitimate rights and interests of the main body of corporate donation, and are not conducive to the maintenance of public welfare. The specific system design of corporate donation should reflect the balance of shareholders' interests, corporate interests and social interests, mainly manifested in the confirmation of corporate donation, the attribution of donation decision-making power, the determination of donation amount and object, And the relief mechanism of the rights and interests of the main interests. In the case of imperfect legislation, it is only within the company that the corporate donation decision-making power is arranged to refine the company directors' fiduciary obligations to the company, and to clarify the amount of the company's donation. Objects and decision-making procedures to constrain corporate donation behavior. But outside the company, it is necessary for the main body of interest to use the stipulation of "Company Law" and "contract Law" to remedy their own rights in order to correct improper corporate donation. The ultimate purpose of legal regulation is not only to encourage the company to donate, but also to maintain the interests of shareholders and companies, and to achieve the balance between the interests of shareholders, the interests of companies and the interests of society in order to promote the harmonious development of society.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2387891
[Abstract]:The corporate donation system is of great significance to the market economy and the development of the company itself, and is an important legal system in the modern company law. With the development of the economy and the progress of the society, the economic strength of the company itself is increasing, and the influence of the company on the society is expanding while pursuing the goal of maximizing the interests of the shareholders. The theory of corporate social responsibility emerges as the times require, which emphasizes that the company should care for and promote all other social interests other than shareholders' interests at the same time as it pursues the maximization of shareholders' interests. Corporate donation is the direct form of corporate social responsibility to promote social welfare. At present, in our country's public welfare undertakings, corporate donation has become the main contribution. Due to the imperfection of laws and regulations on corporate donation, there are many problems in the practice of corporate donation, such as false donation, malicious donation to avoid debt, dishonour of corporate donation promise and so on. These behaviors damage the legitimate rights and interests of the main body of corporate donation, and are not conducive to the maintenance of public welfare. The specific system design of corporate donation should reflect the balance of shareholders' interests, corporate interests and social interests, mainly manifested in the confirmation of corporate donation, the attribution of donation decision-making power, the determination of donation amount and object, And the relief mechanism of the rights and interests of the main interests. In the case of imperfect legislation, it is only within the company that the corporate donation decision-making power is arranged to refine the company directors' fiduciary obligations to the company, and to clarify the amount of the company's donation. Objects and decision-making procedures to constrain corporate donation behavior. But outside the company, it is necessary for the main body of interest to use the stipulation of "Company Law" and "contract Law" to remedy their own rights in order to correct improper corporate donation. The ultimate purpose of legal regulation is not only to encourage the company to donate, but also to maintain the interests of shareholders and companies, and to achieve the balance between the interests of shareholders, the interests of companies and the interests of society in order to promote the harmonious development of society.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前3条
1 孙鹏程,沈华勤;论公司捐赠中的社会责任——以现行法为基础的制度设计[J];法学;2003年04期
2 张怡超;;公司慈善捐赠中的利益冲突与平衡[J];北京人民警察学院学报;2006年04期
3 金彭年,王学峰;社会责任与公司捐赠[J];唐都学刊;2005年02期
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