论文标题:论股东知情权
On the Right to Information of Shareholders
论文作者
论文导师 王彦明,论文学位 硕士,论文专业 法律
论文单位 吉林大学,点击次数 117,论文页数 54页File Size1364K
2007-09-20论文网 http://www.lw23.com/lunwen_204142732/
股东知情权(The Right to Information of Shareholders)是股东(特别是中小股东)的一项非常重要的权利,它是由一系列具体权利组成的规范体系。一直以来,理论界和实务界对于股东知情权的基本含义、范围及行使等方面的理解和认识都存在很大偏差,立法上的相关规定及其配套制度的建设也存在一定缺陷。公司是一个多元利益的汇聚体,如何协调相互冲突的各种利益关系并给予合理的制度安排,应该是公司法的一个永恒主题。笔者认为,围绕公司与股东之间权利义务相互制衡的基本理念,虽不能过于扩张股东知情权的范围,在一定程度上对公司的商业秘密构成威胁,最终危及公司的正常经营秩序,但在制度设计上和实践操作中也不能将股东知情权纸面化、空洞化,甚至加以削弱以致屡屡被侵犯。从长远来看,设计和建立完善的的股东知情权制度,对维护和发展良好健康的市场经济秩序是非常有利的。因而,秉持强化和保护的宗旨,在准确地理解股东知情权基本含义的基础上,应寻求股东知情权的范围、行使以及纠纷预防和救济等方面一系列的立法完善和制度创新,并建立解决公司股东多元利益冲突的最佳平衡点。
From the historical origins, the separation of ownership and management, bound to ask all of the owners to know the situation and supervision of the operational managers to safeguard their own interests. In the field of company law, shareholders’right to information is to meet this need. For centuries, its contents are continuously deepened and improved. China’s Corporation Law studied a lot from the Corporation Law of some developed-countries, such as Germany ,France,and Japan.As the combine economic and social development in China"s actual conditions, After the development of modifications for the protection of shareholders the right to know also formed a number of its characteristics. Overall, although in China"s Corporation Law shareholders were informed of the relevant provisions, however, in both legislation and legislative concepts are technically flawed. This Corporation Law to the provisions of the shareholders’right to information the actual operation and effectiveness of the community have had a negative impact. The legal problems of shareholders’right to information is technical defect, adjusted shareholders’right to information the legal norms, that is, the deficiencies is the direct cause. Arising from the issue behind the reason is that, whether legislators or academics, the nature of content of shareholders’right to information is not comprehensive enough understanding. At the technical level, first of all, we can not see the simple shareholders equivalent to the "right of access to books," they are included with the included relationship. Secondly, the shareholders with the right to know and the right to a related question (asked) , we can look the asking-question right like the "procedural rights" of the right to information ,and they can not be completely separated. At the real level, I believe that with the current state of legislation,only to the one-way choice of strengthen the protection, shareholders with the right to information, in the company"s active duty still have not reached a balance.Basically, the company is a kind of "omission" of attitude and approach to "protect" the shareholders of their right to know. Therefore, the corporation and shareholders’right checks and balances are necessary, but with the strengthening of the functions of the initiative, the corporation is not in contradiction, both of them are in order to improve the complete system design services. For the scope of shareholders’right to information, the author takes the point of comparison. Western developed countries compared to a mature company legislation, the provisions of the Corporation Law, although compared to the old Corporation Law, has been much improved and enriched, but still not comprehensive enough. Mostly stay in the major "property" of operational information, as for the "personal nature" of the management is insufficiently clear. Such as shareholders roster, the board and members of the board of supervisors and the names of candidates, Contact and other specific circumstances, managers and executives auditing the names, contacts, the salary specific circumstances. Accordingly, it should be the right of access to the object for a systematically organized and categorized. First, according to the information and the corporation management, and related matters such as changes in the relationship can be divided into registration information, business information, financial information, management information four categories. Secondly, according to the legal provisions related to access to information, it can be divided into absolute access to information, proper access to information and prohibit access to information. By the above classification, shareholders’right to information on the border quickly become evident. Based on this, we need to examine the specific business practice and judicial operation, how situation and the protection of shareholders’right to information. First, it must be clear and to know a few issues related to the exercise, which involved the exercise of the shareholders’right to know the subject, object, elements subjective and objective elements of the exercise of ways and channels for relief. In this paper, the authors one by one detailed comparison and analysis. For example, in the main exercise, for undisclosed shareholders, investors and shareholders to withdraw from the flaws of the main shareholders, were given the different views. In the exercise of the concept of objective elements, although many of the developed countries in this regard by legislative restrictions .But with the national conditions of China, I believe that this is not the restrictive aspects. In the exercise, scholars refer to the exposition, according to its own understanding, I know the normal exercise and the exercise of the concept of metamorphosis. In the relief channel, there are three kinds of effective channels for relief : First, to request access to the courts action; the second is brought to the court damages action; the third is measures of protection litigation. Clarify and clear of the shareholders to exercise the right to know the relevant basic legal questions, in my view, for the protection of shareholders the right to know, we only rely on the existing legislation under the state system and is unable to meet needs. China’s shareholders’right to know the loopholes in legislation and the design of a system, the lack of it is necessary for us to make in these areas of improvement. Legislation, lies shareholders exercising the right to know the details. This needs to draw on the relevant legislation of developed countries, especially the United States legislation. System innovation, the author believes in learning from China"s experience and in building the system developed on the basis should be read in conjunction with the reality of their own. Trying to establish the system of check and check order system, agent system and corporate information release system.
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