股东权利基础理论研究
发布时间：2019-04-07 20:37
【摘要】：公司是由股东组成的。股东权利是公司运行的基础。股东权利是公司法中的重要概念。应从公司的组合特性和公司内外部的利益关系着手才能全面、准确地理解股东权利。股东权利存在于股东与公司、股东、公司机构、高级管理人员、债权人、债务人之间。股东权利一方面来源于法律的规定,一方面来源于公司章程、股东会决议。根据《公司法》第20条的规定,规定股东权利的法律仅包括全国人大及其常委会制定的法律和国务院制定的行政法规。另外,董事会决议也会对股东权利产生一定影响。股东权利之所以来源于公司章程,是因为公司章程具有法律的品性,是公司内部的法律。在股东的各种具体权利中,各权利的位阶关系是不同的,股东的各具体权利形成了一定的体系。资产收益权是股东权利的核心,查询权是股东的基础性权利。讨论股东权利体系的目的是为了正确区分固有权、非固有权,为了正确评价公司以章程或者决议形式限制或者剥夺股东权利的正当性。股东权利的性质是什么?理论界对此争论颇大。从公司的形成来分析,正是在结社自由权、所有权、契约自由权的相互作用下,股东权利成为一种特殊的独立的权利。目前的理论界的独立权利说并没有指明股东权利的本质。股东权利的本质是成员财产权。具有股东身份是行使股东权利的前提。如何确认股东身份呢?应从公司的设立、运行过程确认股东身份。公司设立、运行中产生的各种文件在确认股东身份中具有不同的作用。股东的出资状况在一程度上会影响股东具体权利的行使,但股东的有些权利不会受出资状况的影响。股东权利的行使包括股东管理权、股东收益权行使两个方面。股东行使管理权实质上是对公司机构的管理。股东对公司机构的管理方式有集体管理方式和个人管理方式。目前,我国《公司法》规定的股东管理权行使方式存在缺陷,应当从股东会、董事会、监事会的设置以及三者的关系着手予以改进。股东直接参与公司经营也是股东行使管理权的重要方式,但从公司法所强调的两权分离的理念看,又是股东管理权行使的特例。依法转让股权是股东行使财产权最活跃、最重要的方式。股权转让也应强调公司的参与,这样才能平衡各方的权利义务关系,减少、防止纠纷的发生。股利分配也是股东行使权利的重要方式,是股东会的职权,因此,法院不能判决公司分配股利。
[Abstract]:The company is composed of shareholders. Shareholders' rights are the foundation of the company's operation. Shareholder right is an important concept in company law. In order to fully and accurately understand the shareholders' rights, we should start from the combination characteristics of the company and the internal and external interests of the company. Shareholders' rights exist between shareholders and the company, shareholders, corporate institutions, senior managers, creditors, debtors. Shareholders' rights on the one hand come from the provisions of the law, on the other hand, from the articles of association, shareholders' meeting resolutions. According to Article 20 of the Company Law, the law regulating shareholders' rights includes only the laws formulated by the National people's Congress and its standing Committee and the administrative regulations formulated by the State Council. In addition, board resolutions will also have a certain impact on shareholders' rights. Shareholders' rights come from the articles of association because the articles of association have the character of law, and it is the internal law of the company. Among all kinds of specific rights of shareholders, the rank-order relationship of each right is different, and the specific rights of shareholders form a certain system. The right of asset income is the core of shareholder's right, and the right of inquiry is the basic right of shareholder. The purpose of discussing the system of shareholders' rights is to correctly distinguish between proprietary rights and non-proprietary rights, and to correctly evaluate the legitimacy of companies restricting or depriving shareholders of their rights in the form of articles of association or resolutions. What is the nature of shareholder rights? There is a lot of debate in the theoretical field. From the formation of the company, it is under the interaction of the freedom of association, the right of ownership and the right to contract that the shareholder's right becomes a special independent right. At present, the theory of independent rights in theorists does not specify the essence of shareholders' rights. The essence of shareholders' rights is the property rights of members. Having the status of shareholder is the premise of exercising shareholders' rights. How do I confirm shareholder identity? The identity of shareholders shall be confirmed from the establishment and operation of the company. The various documents produced in the establishment and operation of the company play a different role in the identification of shareholders. The state of shareholders' contribution will affect the exercise of shareholders' specific rights to a certain extent, but some rights of shareholders will not be affected by the state of capital contribution. The exercise of shareholders' rights includes shareholders' management rights and shareholders' income rights. The exercise of the right of management by shareholders is essentially the management of the company's institutions. Shareholders have collective management and individual management. At present, there are some defects in the way of exercising shareholders' management power, which should be improved from the establishment of shareholders' meeting, the board of directors, the board of supervisors and the relationship among them. The direct participation of shareholders in the operation of the company is also an important way for the shareholders to exercise their managerial power. However, the concept of separation of the two powers emphasized by the public justice is also a special case of the exercise of the managerial power of the shareholders. The transfer of shares according to law is the most active and important way for shareholders to exercise their property rights. Equity transfer should also emphasize the participation of the company, so as to balance the rights and obligations of the parties, reduce the number of disputes and prevent the occurrence of disputes. Dividend distribution is also an important way for shareholders to exercise their rights, and it is the power of shareholders' meeting. Therefore, the court can't judge the company to distribute dividends.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2454404
[Abstract]:The company is composed of shareholders. Shareholders' rights are the foundation of the company's operation. Shareholder right is an important concept in company law. In order to fully and accurately understand the shareholders' rights, we should start from the combination characteristics of the company and the internal and external interests of the company. Shareholders' rights exist between shareholders and the company, shareholders, corporate institutions, senior managers, creditors, debtors. Shareholders' rights on the one hand come from the provisions of the law, on the other hand, from the articles of association, shareholders' meeting resolutions. According to Article 20 of the Company Law, the law regulating shareholders' rights includes only the laws formulated by the National people's Congress and its standing Committee and the administrative regulations formulated by the State Council. In addition, board resolutions will also have a certain impact on shareholders' rights. Shareholders' rights come from the articles of association because the articles of association have the character of law, and it is the internal law of the company. Among all kinds of specific rights of shareholders, the rank-order relationship of each right is different, and the specific rights of shareholders form a certain system. The right of asset income is the core of shareholder's right, and the right of inquiry is the basic right of shareholder. The purpose of discussing the system of shareholders' rights is to correctly distinguish between proprietary rights and non-proprietary rights, and to correctly evaluate the legitimacy of companies restricting or depriving shareholders of their rights in the form of articles of association or resolutions. What is the nature of shareholder rights? There is a lot of debate in the theoretical field. From the formation of the company, it is under the interaction of the freedom of association, the right of ownership and the right to contract that the shareholder's right becomes a special independent right. At present, the theory of independent rights in theorists does not specify the essence of shareholders' rights. The essence of shareholders' rights is the property rights of members. Having the status of shareholder is the premise of exercising shareholders' rights. How do I confirm shareholder identity? The identity of shareholders shall be confirmed from the establishment and operation of the company. The various documents produced in the establishment and operation of the company play a different role in the identification of shareholders. The state of shareholders' contribution will affect the exercise of shareholders' specific rights to a certain extent, but some rights of shareholders will not be affected by the state of capital contribution. The exercise of shareholders' rights includes shareholders' management rights and shareholders' income rights. The exercise of the right of management by shareholders is essentially the management of the company's institutions. Shareholders have collective management and individual management. At present, there are some defects in the way of exercising shareholders' management power, which should be improved from the establishment of shareholders' meeting, the board of directors, the board of supervisors and the relationship among them. The direct participation of shareholders in the operation of the company is also an important way for the shareholders to exercise their managerial power. However, the concept of separation of the two powers emphasized by the public justice is also a special case of the exercise of the managerial power of the shareholders. The transfer of shares according to law is the most active and important way for shareholders to exercise their property rights. Equity transfer should also emphasize the participation of the company, so as to balance the rights and obligations of the parties, reduce the number of disputes and prevent the occurrence of disputes. Dividend distribution is also an important way for shareholders to exercise their rights, and it is the power of shareholders' meeting. Therefore, the court can't judge the company to distribute dividends.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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