论我国公司治理中独立董事和监事会制度的并存监督模式
发布时间：2019-07-06 14:35
【摘要】： 公司治理模式分为英美法系国家的一元制治理模式和大陆法系国家的二元制治理模式。前者又称为单层委员会制,是指公司治理机构设置股东大会和董事会,不设监事会。董事会既执行业务,也履行监督业务执行情况的职能,其中监督业务执行的职能是指在公司董事会内部设置独立董事;后者又称双层委员会制,指在公司内部设置单独监督机构即监事会,董事会作为公司的业务执行机构不参与监督,而由专门设立的监事会履行监督职责。 随着我国公司管理层腐败现象日趋严重,而监事会却因职能缺失难以承载众望,为了强化公司监控,完善决策机制,我国于1997年引入独立董事制度。2001年中国证监会发布《关于在上市公司建立独立董事制度的指导意见》,意见一经颁布,学界便就我国上市公司中是否应建立独立董事制度一直争论不休。2005年修订后的新《公司法》第一百二十三条再次明确规定上市公司应该设立独立董事,确立了我国不同于世界其他国家的的监督模式。本文旨在从两种制度的起源和发展着手,结合我国实际,分析并存监督模式间存在的矛盾,并试图揭示冲突的原因和并存监督模式无法克服的弱点,并提出解决方案。 文章由以下四章组成: 第一章对现代公司治理中监督模式进行概述,本章分为两节,分别对独立董事和监事会相关理论进行介绍,分析了两种制度产生和发展的历程,为以下章节对我国独立董事制度和监事会制度现存模式进行评判奠定基础。第二章对独立董事制度和监事会制度的不同价值进行定位分析,指出其功能基本相似,但是有职能差异,得出了两种制度各有缺陷、各有所长的结论。第三章对目前我国存在的独立董事和监事会制度并存的立法模式进行评判,指出独立董事和监事会制度在我国存在的问题和原因,对两种制度并存的模式进行质疑和缺陷分析,得出共存模式不可行的结论。第四章提出解决问题的思路,对监事会和独立董事制度进行权限划分,从标本兼治的立场出发,分别从“治标”和“治本”两个角度提出解决方案。前者是指在我国现存的两种模式下,对独立董事和监事会制度重新进行功能定位和责任界定;后者是指建立完善的可选择模式即独立董事和监事会制度择一制,以达到治理成本最小化,法律和经济效益最大化的目的,从而使两种制度在不同的公司治理要求中发挥更充分的作用。 本文的目的是在质疑独立董事和监事会制度并存模式的前提下,通过改进和完善这两种制度的监督职能,达到各司其职、各尽所能的功效,为两种制度择其一的模式奠定基础,从而促使我国上市公司治理模式有新的发展和突破。
[Abstract]:The corporate governance model is divided into the unified governance model of common law countries and the dual governance model of civil law countries. The former is also called single-layer committee system, which refers to the establishment of shareholders' general meeting and board of directors, but no board of supervisors. The board of directors not only performs the business, but also performs the function of supervising the performance of the business, in which the function of supervising the execution of the business refers to the establishment of independent directors within the board of directors of the company; the latter, also known as the double-layer committee system, refers to the establishment of a separate supervisory body within the company, that is, the board of supervisors. The board of directors, as the business executive organ of the company, does not participate in supervision, but the specially established board of supervisors performs supervision duties. With the increasingly serious corruption in the management of companies in our country, but the board of supervisors is unable to carry the expectations because of the lack of functions, in order to strengthen corporate monitoring and improve the decision-making mechanism, China introduced the independent director system in 1997. In 2001, the China Securities Regulatory Commission issued the guidance on the Establishment of Independent Director system in listed companies, which was promulgated. The academic circles have been debating whether the independent director system should be established in listed companies in China. Article 123 of the new Company Law revised in 2005 clearly stipulates that listed companies should set up independent directors, which establishes the supervision mode of our country which is different from that of other countries in the world. The purpose of this paper is to analyze the contradictions between the coexisting supervision modes from the origin and development of the two systems, and to reveal the causes of the conflicts and the insurmountable weaknesses of the coexisting supervision modes, and to put forward some solutions. The article consists of the following four chapters: the first chapter summarizes the supervision mode in modern corporate governance, this chapter is divided into two sections, respectively, the independent directors and the board of supervisors related theories are introduced, the emergence and development of the two systems are analyzed, which lays the foundation for the following chapters to judge the existing models of the independent director system and the board of supervisors system in China. The second chapter analyzes the different values of the independent director system and the board of supervisors system, points out that their functions are basically similar, but there are functional differences, and draws the conclusion that the two systems have their own defects and their own advantages. The third chapter evaluates the existing legislative mode of the coexistence of independent director and board of supervisors system in our country, points out the problems and causes of the system of independent director and board of supervisors in our country, questions and analyzes the defects of the two systems, and draws the conclusion that the coexistence mode is not feasible. The fourth chapter puts forward the idea of solving the problem, divides the powers of the board of supervisors and the independent director system, and puts forward the solutions from the two angles of "cure the symptoms" and "cure the root causes" from the standpoint of treating both the symptoms and the root causes. The former refers to the functional orientation and responsibility definition of the independent director and board of supervisors system under the existing two modes in our country, while the latter refers to the establishment of a perfect optional model, that is, the independent director and the board of supervisors system choice system, in order to minimize the governance cost and maximize the legal and economic benefits, so that the two systems can play a fuller role in different corporate governance requirements. The purpose of this paper is to lay the foundation for the mode of choosing one of the two systems by improving and perfecting the supervision function of the two systems, and laying the foundation for the two systems to choose one mode, so as to promote the new development and breakthrough of the governance mode of listed companies in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2511089
[Abstract]:The corporate governance model is divided into the unified governance model of common law countries and the dual governance model of civil law countries. The former is also called single-layer committee system, which refers to the establishment of shareholders' general meeting and board of directors, but no board of supervisors. The board of directors not only performs the business, but also performs the function of supervising the performance of the business, in which the function of supervising the execution of the business refers to the establishment of independent directors within the board of directors of the company; the latter, also known as the double-layer committee system, refers to the establishment of a separate supervisory body within the company, that is, the board of supervisors. The board of directors, as the business executive organ of the company, does not participate in supervision, but the specially established board of supervisors performs supervision duties. With the increasingly serious corruption in the management of companies in our country, but the board of supervisors is unable to carry the expectations because of the lack of functions, in order to strengthen corporate monitoring and improve the decision-making mechanism, China introduced the independent director system in 1997. In 2001, the China Securities Regulatory Commission issued the guidance on the Establishment of Independent Director system in listed companies, which was promulgated. The academic circles have been debating whether the independent director system should be established in listed companies in China. Article 123 of the new Company Law revised in 2005 clearly stipulates that listed companies should set up independent directors, which establishes the supervision mode of our country which is different from that of other countries in the world. The purpose of this paper is to analyze the contradictions between the coexisting supervision modes from the origin and development of the two systems, and to reveal the causes of the conflicts and the insurmountable weaknesses of the coexisting supervision modes, and to put forward some solutions. The article consists of the following four chapters: the first chapter summarizes the supervision mode in modern corporate governance, this chapter is divided into two sections, respectively, the independent directors and the board of supervisors related theories are introduced, the emergence and development of the two systems are analyzed, which lays the foundation for the following chapters to judge the existing models of the independent director system and the board of supervisors system in China. The second chapter analyzes the different values of the independent director system and the board of supervisors system, points out that their functions are basically similar, but there are functional differences, and draws the conclusion that the two systems have their own defects and their own advantages. The third chapter evaluates the existing legislative mode of the coexistence of independent director and board of supervisors system in our country, points out the problems and causes of the system of independent director and board of supervisors in our country, questions and analyzes the defects of the two systems, and draws the conclusion that the coexistence mode is not feasible. The fourth chapter puts forward the idea of solving the problem, divides the powers of the board of supervisors and the independent director system, and puts forward the solutions from the two angles of "cure the symptoms" and "cure the root causes" from the standpoint of treating both the symptoms and the root causes. The former refers to the functional orientation and responsibility definition of the independent director and board of supervisors system under the existing two modes in our country, while the latter refers to the establishment of a perfect optional model, that is, the independent director and the board of supervisors system choice system, in order to minimize the governance cost and maximize the legal and economic benefits, so that the two systems can play a fuller role in different corporate governance requirements. The purpose of this paper is to lay the foundation for the mode of choosing one of the two systems by improving and perfecting the supervision function of the two systems, and laying the foundation for the two systems to choose one mode, so as to promote the new development and breakthrough of the governance mode of listed companies in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前4条
1 刘丹;我国上市公司监事会制度的完善研究[D];昆明理工大学;2015年
2 李德荣;中外合资经营企业治理结构现实问题及其对策[D];华东政法大学;2014年
3 张咪;中国独立董事制度反思[D];华东政法大学;2014年
4 沙田硕;我国公司监事会独立性问题研究[D];吉林大学;2013年
，本文编号：2511089
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2511089.html
