我國獨立董事制度的現(xiàn)存弊端與制度完善
發(fā)布時間：2018-07-29 11:15
【摘要】：獨立董事制度是指由獨立的外部董事在公司董事會中擔任一定的職務(wù),形成對公司管理層的監(jiān)督和制約,主要是為了克服公司董事會被控股股東及其管理層控制從而違背全體股東和公司整體利益的弊端,以此改善公司治理結(jié)構(gòu),維護全體投資者和公司的整體利益,實現(xiàn)股東利益與公司價值的最大化。獨立董事制度起源于美國的公司治理制度,其對獨立董事制度的選擇是由于公司所有權(quán)和控制權(quán)分離后,公司被管理層控制,公司的權(quán)利結(jié)構(gòu)出現(xiàn)失衡,為了制衡管理層,維護股東利益,降低代理成本,確立了獨立董事行使監(jiān)督職能。我國公司的治理結(jié)構(gòu)為“二元制”,監(jiān)事會是公司的法定監(jiān)督機構(gòu)。我國獨立董事制度的引進,起初是為了公司在海外上市而被動引進,但是在實踐中,獨立董事表現(xiàn)出了監(jiān)事會所沒有的價值,其具有的“獨立性”和專業(yè)性對于彌補監(jiān)事會的缺陷和完善公司治理結(jié)構(gòu),制衡控股股東和“內(nèi)部人控制”起到了不可或缺的作用,因此,獨立董事制度最終在我國以《公司法》的形式得到了確認。 我國的獨立董事制度引進時問短,所以尚存在不少的弊端。首先是因為現(xiàn)行法制的不健全,配套法規(guī)出臺的遲緩,使獨立董事制度的法律規(guī)范體系不完善,如此以來,獨立董事制度在權(quán)、義、責方面的不協(xié)調(diào)、不具體,嚴重阻礙著獨立董事制度功能的發(fā)揮。同時由于上市公司股權(quán)結(jié)構(gòu)的“一股獨大”及我國傳統(tǒng)文化的根深蒂固,這些外在環(huán)境都使得獨立董事難以充分的行使自己的職權(quán),發(fā)揮自己的作用。因此,為了順利推行獨立董事制度,使之起到預期的作用,必須對獨立董事制度進行改造,使其得以完善。 他山之石,可以攻玉。美國作為獨立董事制度的發(fā)源地,在建立和完善獨立董事制度方面有著成熟的經(jīng)驗。因此對美國獨立董事制度的重點內(nèi)容進行評析和借鑒是具有重要意義的。當然,獨立董事制度在美國的發(fā)展也并非一帆風順,出現(xiàn)了譬如安然和世通等震驚世界的案例,這些案例揭示了美國獨立董事制度的弊端,這也當引起我們的注意,在建立我國獨立董事制度的過程中,要興利除弊,結(jié)合本國實際國情,借鑒他國成功經(jīng)驗,吸取他國失敗教訓,不斷健全和完善我國上市公司的獨立董事制度。 我國目前的獨立董事制度,急切需要在國家立法機關(guān)、非政府自律組織和上市公司自身三方共同的積極配合下,把健全獨立董事制度作為著力點,通過獨立董事選任機制、獨立董事的激勵和約束機制、獨立董事權(quán)利保障機制等方面的完善,提高獨立董事現(xiàn)階段的地位,維護其應(yīng)有的“獨立性”,保障其基本的權(quán)利,使其充分發(fā)揮自身的監(jiān)督作用,提高自身的參與決策的作用。尤其在我國現(xiàn)階段,公司治理結(jié)構(gòu)改革正在進行,證券市場正在蓬勃發(fā)展,除了大型的上市公司外,規(guī)模較小的公司也在創(chuàng)業(yè)板集中上市的過程中,一套完善的獨立董事制度的快速出臺,對于維護全體股東和整個公司的利益具有極其重要的意義。從全局來看,獨立董事制度的完善和發(fā)展,對維護我國經(jīng)濟的穩(wěn)定和繁榮也具有不可替代的作用。
[Abstract]:The independent director system means that the independent external director holds certain duties in the board of directors of the company, and forms the supervision and restriction to the management of the company. It is mainly to overcome the abuse of the controlling shareholders and their management of the company's board of directors, which violates the overall interests of the whole shareholders and the company, so as to improve the corporate governance structure and maintain it. The overall interests of all investors and companies maximize the interests of the shareholders and the value of the company. The independent director system originates from the corporate governance system in the United States. The choice of the independent director system is due to the separation of the ownership and control of the company. The company is controlled by the management, and the structure of the company's rights is out of balance, in order to balance management. In order to maintain the interests of shareholders and reduce the agency cost, the supervisory function of independent directors is established. The governance structure of our company is "two yuan system", and the board of supervisors is the legal supervision organization of the company. The introduction of independent director system in China was introduced for the company to be listed overseas at first, but in practice, independent directors showed that The value of the board of supervisors has no value. Its independence and professionalism have played an indispensable role in making up the defects of the board of supervisors, perfecting the corporate governance structure, balancing controlling shareholders and "insider control". Therefore, the independent director system has been confirmed in the form of "public justice" in China.
The introduction of independent director system in China is short, so there are still a lot of drawbacks. First, because the current legal system is not perfect and the relevant laws and regulations are slow, the legal system of the independent director system is not perfect. In this way, the independent director system is incongruous in the right, meaning and responsibility, and is not specific, which seriously hinders the independent board of directors system. At the same time, because of the independence of the stock structure of the listed companies and the deep-rooted traditional culture of our country, the external environment makes it difficult for the independent directors to exercise their functions and powers fully and play their role. Therefore, in order to carry out the independent director system successfully, the independent director must be independent. The director system is reformed to make it perfect.
As the birthplace of the independent director system, the United States has a mature experience in the establishment and improvement of the independent director system. Therefore, it is of great significance to analyze and draw on the key contents of the independent director system of the United States. Such cases as Enron and WorldCom shocked the world. These cases reveal the drawbacks of the independent director system of the United States, which should also arouse our attention. In the process of establishing our independent director system, we should benefit from the actual conditions of the country, draw on the successful experience of his country, draw lessons from the failure of his country, and constantly improve and perfect our country. The independent director system of the listed company.
The current independent director system in China is urgently needed in the active cooperation of the three parties of the national legislature, the non-governmental self-discipline organization and the listed company itself, and the perfect independent director system as the focus point, the independent director selection mechanism, the independent director's incentive and restraint mechanism, the independent director's rights guarantee mechanism and so on. To improve the status of the independent director at the present stage, to maintain its "independence", to guarantee its basic rights, to give full play to its own supervisory role and to improve the role of its own participation in decision-making. Especially in the present stage of our country, the reform of corporate governance is being carried out, and the securities market is booming, except for large listed companies. In addition, small companies are also in the process of centralization of the gem. A set of perfect independent director system is of great significance for the maintenance of the interests of all shareholders and the whole company. In the whole situation, the perfection and development of the independent director system can not be used to maintain the stability and prosperity of our country's economy. The role of substitution.
【學位授予單位】：中國海洋大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.291.91
本文編號：2152510
[Abstract]:The independent director system means that the independent external director holds certain duties in the board of directors of the company, and forms the supervision and restriction to the management of the company. It is mainly to overcome the abuse of the controlling shareholders and their management of the company's board of directors, which violates the overall interests of the whole shareholders and the company, so as to improve the corporate governance structure and maintain it. The overall interests of all investors and companies maximize the interests of the shareholders and the value of the company. The independent director system originates from the corporate governance system in the United States. The choice of the independent director system is due to the separation of the ownership and control of the company. The company is controlled by the management, and the structure of the company's rights is out of balance, in order to balance management. In order to maintain the interests of shareholders and reduce the agency cost, the supervisory function of independent directors is established. The governance structure of our company is "two yuan system", and the board of supervisors is the legal supervision organization of the company. The introduction of independent director system in China was introduced for the company to be listed overseas at first, but in practice, independent directors showed that The value of the board of supervisors has no value. Its independence and professionalism have played an indispensable role in making up the defects of the board of supervisors, perfecting the corporate governance structure, balancing controlling shareholders and "insider control". Therefore, the independent director system has been confirmed in the form of "public justice" in China.
The introduction of independent director system in China is short, so there are still a lot of drawbacks. First, because the current legal system is not perfect and the relevant laws and regulations are slow, the legal system of the independent director system is not perfect. In this way, the independent director system is incongruous in the right, meaning and responsibility, and is not specific, which seriously hinders the independent board of directors system. At the same time, because of the independence of the stock structure of the listed companies and the deep-rooted traditional culture of our country, the external environment makes it difficult for the independent directors to exercise their functions and powers fully and play their role. Therefore, in order to carry out the independent director system successfully, the independent director must be independent. The director system is reformed to make it perfect.
As the birthplace of the independent director system, the United States has a mature experience in the establishment and improvement of the independent director system. Therefore, it is of great significance to analyze and draw on the key contents of the independent director system of the United States. Such cases as Enron and WorldCom shocked the world. These cases reveal the drawbacks of the independent director system of the United States, which should also arouse our attention. In the process of establishing our independent director system, we should benefit from the actual conditions of the country, draw on the successful experience of his country, draw lessons from the failure of his country, and constantly improve and perfect our country. The independent director system of the listed company.
The current independent director system in China is urgently needed in the active cooperation of the three parties of the national legislature, the non-governmental self-discipline organization and the listed company itself, and the perfect independent director system as the focus point, the independent director selection mechanism, the independent director's incentive and restraint mechanism, the independent director's rights guarantee mechanism and so on. To improve the status of the independent director at the present stage, to maintain its "independence", to guarantee its basic rights, to give full play to its own supervisory role and to improve the role of its own participation in decision-making. Especially in the present stage of our country, the reform of corporate governance is being carried out, and the securities market is booming, except for large listed companies. In addition, small companies are also in the process of centralization of the gem. A set of perfect independent director system is of great significance for the maintenance of the interests of all shareholders and the whole company. In the whole situation, the perfection and development of the independent director system can not be used to maintain the stability and prosperity of our country's economy. The role of substitution.
【學位授予單位】：中國海洋大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.291.91
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