我国股东质询权问题研究

发布时间：2019-03-27 11:06

【摘要】：按照公司“分权”原则,董事会行使公司经营决策和业务执行的职责,而公司多数股东无法参与公司的日常经营,继而获得公司信息的途径也相对较少甚至为零。因此,股东和公司经营层之间严重的信息不对称,直接导致股东无法掌握相当信息,继而使得其对公司经营层的监督显得异常困难。为缓解信息不对称所产生的弊端,有效行使股东权,畅通股东的信息取得渠道显得尤为重要。根据我国《公司法》第34条的规定,股东可以通过行使查阅权获取公司的信息,但面对如财务报表涉及会计业务的专业资料,股东很难通过自行查阅明了。为弥补查阅权不足,我国《公司法》规定了股东质询权,它是指出席股东(大)会的股东为行使其股东权,而请求董事、监事、高级管理人员就与股东(大)会会议议题和议案中的有关问题进行解释说明的权利。质询权的确立对于股东特别是中小股东弱势地位提升、打破公司与中小股东间的信息不对称格局、真正发挥股东(大)会对公司管理层的监督、完善公司治理等方面有重要意义。然而,《公司法》中对于质询权的规定过于原则、抽象,比如质询权的权利主体、行使程序、被质询人的说明义务等问题亟需明确与细化,才能在实践中落实这一权利。从既有认识并结合日本、德国等国的先进立法经验来看,股东质询权应是一种单独的、法定的、具有辅助性的共益权。它的存在有深厚的理论基础作支撑。然而任何一项制度总不尽完美,我国股东质询权制度应从实体与程序两方面加以改进,尤其注重从司法救济与自力救济两方面完善救济措施,以免去行使质询权的股东后顾之忧。惟此,股东才会积极行使自己的权利,有效保障自身权益。
[Abstract]:According to the principle of "decentralization", the board of directors exercises the responsibility of business decision-making and business execution, and the majority shareholders of the company cannot participate in the day-to-day operation of the company, and the access to information about the company is relatively few or even zero. Therefore, the serious information asymmetry between the shareholders and the management layer of the company leads directly to the shareholders' inability to grasp the considerable information, which makes it very difficult for them to supervise the management layer of the company. In order to alleviate the malpractice of information asymmetry, it is very important to effectively exercise the shareholders' right and clear the access channel of shareholders' information. According to article 34 of the Company Law of China, shareholders can obtain the information of the company through the exercise of the right of inspection. However, it is difficult for shareholders to find out by themselves, for example, the financial statements involve the professional information of the accounting business. In order to make up for the deficiency of the inspection right, the Company Law of our country stipulates the right of the shareholder to inquire, which means that the shareholder who attends the shareholders'(large) meeting requests the director and supervisor for the exercise of his shareholders' right. The right of senior managers to explain issues related to shareholder meetings and proposals. The establishment of inquiry right promotes the weak position of the shareholders, especially the minority shareholders, breaks the information asymmetry between the company and the minority shareholders, and gives full play to the supervision of the management of the company by the shareholders (large). It is of great significance to perfect corporate governance and so on. However, the provisions on the right of inquiry in the Company Law are too principled and abstract, such as the right subject of the inquiry right, the exercise of the procedure, the obligation of the person questioned to explain and so on, which need to be clarified and refined in order to realize this right in practice. According to the advanced legislative experience of Japan, Germany and other countries, the shareholders' inquiry right should be a kind of separate, legal and auxiliary common benefit right. Its existence is supported by a deep theoretical foundation. However, any system is not perfect, and the system of shareholders' inquiry right should be improved from both substantive and procedural aspects, especially from the aspects of judicial relief and self-reliance relief. In order to avoid the exercise of the right of inquiry shareholders worry. Only in this way, shareholders will actively exercise their rights and effectively protect their rights and interests.
【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】：D922.291.91

【参考文献】