异地商会法律规制问题研究

发布时间：2018-08-09 12:14

【摘要】：商会在我国历史久远,早在“重农抑商”思想盛行的封建时期即已随着商品经济的发展而出现,至现代社会,商会组织已经成为社会经济生活中重要的商事活动参与主体,而学术理论对于商会制度的研究仍处于较为初级的阶段。商会制度的理论研究或者准确的说是法律研究与商会在实践中所发挥的作用、商会地位不相符,因此应该通过商事立法的方式对商会进行制度完善。商会在实践中存在多种形式,其中异地商会由于其商会成员籍贯地与所在地分离,使得异地商会具有区别于当地商会以及行业协会的特殊之处,本文即以异地商会作为研究对象,探讨异地商会在现代社会中所存在的问题,以及针对该种问题提出的相应解决措施。当前,在全国范围内多数地区已经通过地方立法对商会进行法律指引,而我国现在仍缺少全国统一性商会立法,统一立法缺失使商会在实践中存在缺乏确定性指引。异地商会由于其籍贯地与所在地存在区分,负有联系两地经济,促进招商引资等特殊职责。同时由于其特殊性,异地商会存在着过分依赖商会领导个人影响力、异地商会设置重复、政府与异地商会之间管理不明确等问题,因此寻求异地商会上述问题的法律解决方式成为促进异地商会职能发挥的工作重点。通过走访中国商会制度发展最为完善的温州地区并对长春地区异地商会(主要是吉林福建商会)等进行实地调研,掌握异地商会有关第一手资料,使所探讨的异地商会存在的问题是实践中比较普遍的且具有研究价值的,并针对性提出解决措施,保证研究课题能够对异地商会发展提供理论指引且不与实践偏离。通过理论与实践总结,本文认为探讨解决异地商会双重管理、内部治理结构不健全等问题时,首先应当明确异地商会自治管理模式,异地商会自治强调商会管理与行政机关分离,充分保障商会内部管理不受行政机关干预,赋予商会自治权,保障其充分发挥管理职能。同时,强调商会与行政机关分离并非指两者之间不存在任何关联,而是应正确处理两方关系,由于异地商会的一项主要职责在于代表商会成员参与经济活动,当内部成员权益受到侵害时,由异地商会作为集体组织进行维权,此时应当由相应的行政机关负责处理商会所述问题,因此强调异地商会自治是商会内部管理层面的自治,而对外关系中应明确行政机关与商会之间的管理关系。确立商会自治管理的前提后,需要对异地商会自治权利进行监督制约,防止商会自治权利滥用。首先应发挥社会的监督作用,通过公众监督、媒体监督、信息披露的方式,保障异地商会行使职权时能够积极尽责。兼顾社会监督的基础上,对权利制约的最有效方式是制定全国统一立法,从法律角度明确规定异地商会的组成、组织及治理结构、异地商会权利义务等内容,使异地商会符合法律规定,并最终保障异地商会能够充分发挥其作为商事经济参与者的作用。
[Abstract]:The chamber of Commerce has a long history in our country. As early as the feudal period of "heavy farming and restraining commerce" in the feudal period, the feudal period has emerged with the development of the commodity economy. To the modern society, the chamber of Commerce has become an important part of the commercial activities in the social and economic life, and the academic theory is still in a relatively primary stage for the study of the chamber of Commerce. The theoretical study of degree is the role of the law research and the chamber of Commerce in practice. The chamber of commerce does not match the status of the chamber of Commerce. Therefore, the chamber of commerce should be perfected through the way of commercial legislation. The chamber of Commerce has many forms in practice, in which the chamber of Commerce separates the native place of its members from its native place, and makes the business of the chamber of Commerce. There will be a special feature different from the local chamber of Commerce and the trade association. This article is based on the foreign chamber of Commerce as the research object, and discusses the problems existing in the modern society and the corresponding solutions to the problems in the modern society. At present, the law of the chamber of Commerce has been carried out through the local legislation in most areas throughout the country. But there is still a lack of national unified chamber of Commerce Legislation in our country. The lack of unified legislation makes the chamber of Commerce lack definite guidance in practice. The chamber of Commerce, because of its distinction between its native place and its location, is responsible for the special duties of connecting the two regions of the economy and promoting investment and investment. At the same time, the chamber of Commerce of the foreign chamber of commerce is too dependent on business. It will lead the individual influence, the local chamber of Commerce repeats, the management of the government and the foreign chamber of commerce is not clear and so on. Therefore, the legal solution to seek the above-mentioned problems of the foreign chamber of Commerce has become the focus of promoting the functions of the foreign chamber of Commerce. By visiting the Chinese Chamber of commerce system, the most perfect Wenzhou area and the foreign land of the Changchun region are developed. The chamber of Commerce (mainly the Fujian chamber of Commerce in Jilin) carries out field research, mastering the first hand information of the foreign chamber of Commerce, so that the problems existing in the foreign chamber of commerce are more common in practice and have research value in practice, and the solutions are put forward to ensure that the research topic can provide theoretical guidance to the development of the foreign chamber of Commerce and not to be real. On the basis of theoretical and practical summary, this paper holds that when we discuss and solve the problems of the dual management of the foreign chamber of Commerce and the unsound internal governance structure, we should first define the autonomous management mode of the foreign chamber of Commerce. The autonomy of the chamber of Commerce emphasizes the separation of the management of the chamber of Commerce and the administrative organs, and the internal management of the chamber of commerce is not subject to the intervention of the administrative organs. At the same time, it emphasizes that the separation of the chamber of Commerce and the administrative organ does not mean that there is no association between the two, but that the two party relations should be dealt with correctly, because one of the main duties of the chamber of commerce is to represent the members of the chamber of Commerce to participate in the economic activities. When the rights of the members of the chamber of commerce are infringed, the chamber of Commerce of the chamber of commerce is made by the foreign chamber of Commerce. As a collective organization to maintain rights, the corresponding administrative organs should be responsible for dealing with the problems described by the chamber of commerce at this time. Therefore, the autonomy of the chamber of Commerce in the foreign chamber of commerce is the autonomy of the chamber of Commerce, and the management relationship between the administrative organs and the chamber of commerce should be clearly defined in the foreign relations. Right to supervise and restrict the rights of the chamber of Commerce to prevent the abuse of the autonomy of the chamber of Commerce. First of all, we should play a role in the supervision of the society, through the public supervision, media supervision, information disclosure, and the protection of the functions of the foreign chamber of Commerce. On the basis of taking into account the social supervision, the most effective way to make an agreement on the rights system is to formulate a national unified legislation and from the law. The law clearly defines the composition, organization and governance structure of the foreign chamber of Commerce, the rights and obligations of the chamber of Commerce in different places, so as to make the chamber of Commerce in a foreign country conform to the law, and ultimately ensure that the chamber of Commerce in the foreign country can fully play its role as a participant in the commercial economy.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.99

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