【作者】 胡改蓉；

【导师】 顾功耘；

【作者基本信息】 华东政法大学 ， 经济法学， 2009， 博士

【摘要】 在公司治理机制中,董事会上受制于“股东会”,下监督“经理层”,处于“承上启下”的枢纽地位,其职能定位是否准确、人员构成是否合理、激励机制与约束机制是否完善,直接决定了公司经营绩效。在以公司制为国企改革方向的时代背景下,董事会制度自然成为国有公司治理机制良性运转的关键。自1994年《公司法》实施以来,国有公司董事会制度逐步得以确立。然而,现实中形似神非的董事会建设难以实现制度设计之初衷,其运作机理的异化、人员构成的“准官员化”造成了国有公司治理机制徒具其表,传统流弊难以根除。2004年,国务院国有资产监督管理委员会以大型央企为切入点,积极探索、着力推动国有独资公司董事会试点工作,彰显了政府希望借助于董事会制度来完善国有公司治理机制的迫切愿望。一时间,“央企改革命系董事会”成为国企改革的经典写照。然而,为时近5年的试点工作,远未达到预期效果。董事会的职权究竟应该如何设计、其人员构成究竟如何配置、评估机制该如何构建、激励机制与约束机制又该如何完善,这一系列问题,现有制度并未给出令人满意的答案。正是在这样的困惑下,本文以国有公司董事会法律制度为研究对象,将公司法原理与我国国有公司的“个性化”特点进行对接,就相关制度进行反思与重构,希冀能对当下国有公司董事会法律制度建设起到“抛砖引玉”的作用。本文沿着基点论——角色论——结构论——绩效论——激励论——责任论的逻辑线索逐层展开,以国有公司类型的“纵横”剖析为切入点,探究了国有公司董事会的角色定位,并在此基础上,从功能主义出发,设计了董事会之内部构造;为检测上述角色定位与内部构造之合理性、董事履职之适格性,文章构建了董事会评估机制,并认为在完善相关激励机制与约束机制的基础上,以评估结果为参数对董事进行奖惩,能够有效促使董事为公司利益恪尽职守、勤勉工作,最终实现国有公司董事会制度设计之目的。第一章基点论:国有公司及其董事会法律制度基本解析本部分是全文研究的逻辑起点,主要是对国有公司类型进行了重新梳理并对国有公司董事会法律制度进行了基本解析。在该部分中,国有公司类型的梳理对全文研究思路起着指导作用,也是本章的核心内容所在。在我国,现有的理论研究和立法实践,对国有公司董事会法律制度的构建都是以单纯的资本结构为依据进行分类设计(即对于国有独资公司和国有控股公司规定了不同的董事会法律制度),而忽视了国有公司所处领域以及国有资产经营管理体制等因素对国有公司治理结构之影响,如此一来,使得政府对国有公司的管理一直在“放权”与“收权”之间摇摆不定。本文的研究突破了上述传统框架,就国有公司类型进行了“纵横立体式”梳理,并以此为脉络,对董事会各项具体制度进行研究。就“横向”分类而言,目前我国国有公司可分为非竞争性领域国有公司与竞争性领域国有公司。前者发挥着“政治功能的延伸”作用,不以营利为最终追求,社会性是其本质所在,在根本上属于特殊法人,无法做到政企的绝对分开,其运作必然受到政府一定程度的干预。后者则是基于我国国情的特殊考虑。尽管依照经典经济学理论,国有公司应当退出竞争性领域,然而在当下的中国,不可能采取极端的退出方式,必然需要一个过程,在这个过程中,国有公司治理问题同样存在。因该类公司在本质上属于商事公司,故,政府应当与其保持“一臂之距”,还企业于市场。就“纵向”分类而言,目前对于我国国有资产经营管理体制,应当采取“政府——控股公司——企业实体”的“三级经营模式”。在该模式中,处于中间层的控股公司(即国有资产经营公司)最为关键,是国有资本与市场运作对接的平台,事关整个经营模式的成败。由于国有资产经营公司割裂了政府与处于市场的企业实体的直接联系,因此,企业实体受政府干预的力度必然较小;相比之下,国有资产经营公司直面政府,必然容易受到政府的过度干预,因此,对其独立性的保障应成为国有公司董事会法律制度构建的核心之一。由于上述的“纵”“横”类型必然存有交叉,这就形成了本文研究国有公司董事会的“纵横立体式”模式,即“非竞争性领域国有资产经营公司——非竞争性领域普通国有公司”及“竞争性领域国有资产经营公司——竞争性领域普通国有公司”。当然,由于国有公司出资人的固有“虚位”、政府身份的特殊以及委托代理关系的复杂,无论是针对何种类型的国有公司进行董事会法律制度构建,都应当在顾及“国有”特色的前提下,体现董事会的独立、专业以及责任的严格。第二章角色论:国有公司董事会之职权设计董事会的职权界定是研究董事会法律制度的首要问题。文章以公司权力配置的法经济学分析为视角,基于效率对制度的需求、控制权与风险的匹配以及“股东本位”向“社会本位”的转变,并结合我国国有公司对政企分开以及国有资产保护的特殊需求,提出了国有公司中“董事会中心主义”的立法模式,将董事会的经营决策权予以扩展,同时,确保其对经理层的监督权。文章以经营决策权为分析重点,就不同类型的国有公司进行了分类设计:对竞争性领域国有公司提出了以“商业化”为方向的董事会职权设计思路,并就国有资产经营公司与处于市场的普通国有公司进行了分别阐述;而对非竞争性领域国有公司,基于其“社会性”因素的考量,虽然也强调董事会对公司剩余控制权的享有,但是对主营业务的转变、投资方向的更改、产品价格的调整等特定事项的决策权予以了限制。由于董事会的独立性是董事会职权得以正当行使的保障,为使其权能不受“蚕食”,文章就董事会与国有资产监督管理委员会、党委会、经理层的关系分别进行了厘定,这对于防止政府过度干预和“内部人控制”有着极为关键的作用。就国有资产监督管理委员会与董事会关系,本文认为应由授权经营关系向监管关系转变;董事会与党委会的关系,应当切实实现“经营决策中心”与“政治核心”的分野;而董事会与经理层的关系,则应当强调各自角色的回归,前者监督后者,后者辅助于前者。第三章结构论:国有公司董事会之内部构造再好的职权设计必须依靠良好的组织机制才能得以实现。因此,董事会的组织结构是董事会职能有效发挥作用的基础。在本部分,文章对董事会的规模、构成、专业委员会的设置以及董事的选任机制、董事长的确定方式等进行了深入探讨。对于董事会的构成,文章认为基于不同领域国有公司功能之不同,应当进行区别设计:对非竞争性领域的国有公司董事会,应建立“三三三”的制衡模式,即三分之一的政府董事、三分之一的独立董事以及三分之一的内部董事(执行董事和职工董事);而对竞争性领域的国有公司董事会,则应采纳独立董事为主的构建机制。此外,文章在本部分还重点就国有公司的政府董事制度、外部董事制度以及职工董事制度进行了详细分析。对于政府董事,本文认为,应当由适格的政府公职人员担任,在本质上其与公司形成的是混入了政治因素的服务契约,既需要向公司负有忠实义务和注意义务,也需要向国家负有特定的报告义务和信息沟通义务;对于外部董事,当前最大的问题是仅仅独立于经理层而未独立于政府,这虽然有利于对“内部人控制”现象的抑制,但却不利于政企分开目标之实现,因而应向独立董事制度迈进;对于职工董事,目前急需走出“两栖身份”的尴尬,明确以公司利益为其决策依据,当然,为实现该制度设计之初衷,在具体权义配置上要彰显职工董事之特色,使其能够在董事会平台充分反映职工之利益诉求。第四章绩效论:国有公司董事会评估机制之构建董事会的职权设计是否合理、组织结构是否科学、所选任的董事是否适合、权义配置是否得当,这一系列问题的答案都必须“用事实说话”,而对该事实的公正判断就需依靠评估机制。规范、科学的评估机制既是国有公司董事会有效运作的保障,又是选拔国有公司董事,并对其进行激励和约束的重要参数。通过建立符合国有公司实际特点的董事会评估体系,可以对董事会以及董事的行为进行引导和矫正,提高其履职能力,以实现公司的有效治理和国有资产的保值增值。目前关于董事会的评估方式主要有董事会的自我评估、社会机构的评估以及出资人的评估。基于国有资产的特色,本文尤其强调的是后者,即出资人对国有公司董事会的评估,其中又以国资委享有的评估权为重。在具体的评估内容上,文章认为,对于董事会的整体评估,应当从董事会结构之合理性、董事会履职之尽责性以及公司发展及业绩之良好性三方面进行;而对于董事个人的评估,则主要依据普通标准和个性化标准分别展开。所谓普通标准,即为董事对公司所负之忠实义务和注意义务;而所谓个性化标准,则为执行董事、独立董事、政府董事以及职工董事基于制度设计的本源而各自负有的特定义务。第五章激励论:国有公司董事激励机制之不足及其补正依据评估结果,公司应当对履职情况较好的董事进行激励,这是对“人力资本”投入的一种认可。因此,激励机制的完善是董事会法律制度构建的关键环节之一。由于国有公司中委托代理关系的复杂性,使得代理人的机会主义与逆向选择更为明显,因此,国有公司董事的激励机制设计必然与私人公司有着不同。这种不同主要体现于以下三点:首先,政府应对国有公司董事的激励机制享有决策权和监督权。尽管文中对执行董事、独立董事以及职工董事薪酬的确定构建了不同的程序,但是,始终保障了出资人的最终决策权。对于政府董事,本文在借鉴国外有关制度的基础上,认为其不应从公司取得报酬,对其的激励方式可以采取“经营优而升”的模式;其次,激励机制设计应当体现法律的“分配正义”。对于目前较为敏感的国企管理者高薪问题,本文认为不应进行“一刀切”的“倍数”管理,而应区别对待:对于竞争性领域的国有公司,政府不应过度干预,由市场自行决定,体现激励机制的外部公平性,以此吸引有能力的管理者加入国有公司;而对于非竞争性领域的国有公司,由于公司业绩的取得不仅是依靠董事等管理者的经营才能,更多的是依靠其垄断地位或者国家资源,因此,可进行一定的“倍数”管理;最后,为保障激励机制的公允性,文章提出应建立和完善有限的司法审查制度、充分的信息披露制度以及国有公司特有的经济责任审计制度,以防止畸高的董事激励对公司利益的“蚕食”。第六章责任论:国有公司董事法律责任体系之完善降低代理成本的措施应当是对业绩突出者给予丰厚的、可预期的回报,而对经营失败者则施加切实的、可预期的惩罚。此时,责任机制就成了董事会能够有效运作的保障。笔者从民事责任、行政责任、刑事责任三方面入手,对完善国有公司董事法律责任体系提出了相关建议。就民事责任而言,文章以董事对公司的责任为视角,从民事责任的强化和民事责任的限制“正”、“反”两反面进行了制度补正,尤其是在民事责任的限制上,对于经营判断原则在我国国有公司中的个性化适用、董事责任限制制度对政府董事和职工董事率先适用的可行性等,分别进行了详细论述;就行政责任而言,文章主要是针对目前制度设计的“统一”做法提出质疑,认为基于政府董事与非政府董事的身份差别,应当分别适用行政处分和行政处罚,不能仅因公司的“国有”身份而一律采取行政处分;就刑事责任而言,文章主要就国有公司与非国有公司的“差别保护”进行了剖析,认为在涉及罪与非罪的问题上应当平等对待;在罪名认定上,除政府董事仍适用现行规定外(即按国家公职人员定罪),亦应体现形式平等;但在具体刑罚设定上,基于刑法之法意,对国有公司董事应“从重”处罚,通过对国有资产的“差别保护”,实现实质正义。此外,文章还就背信罪在我国引入的可行性进行了分析,认为立法应引入普通背信罪,并与现行的特别背信罪相结合,构建一个例示加概括的“背信罪”立法模式,体现法律的确定性和灵活性,维护委托人利益。更多还原

【Abstract】 The board of directors, as a connecting link between shareholders assembly and management, lies at the key position in company governance mechanisms. The functions, personnel composition, incentive and restraint mechanism of board of directors determine a company’s performance. Under the background that company system is the direction of the reform of state-owned enterprises, the system of board of directors is naturally critical for state-owned companies’successful operations.Since the implementation of PRC Company Law in 1994, the system of board of directors in state-owned company has been gradually established. However, it is difficult to achieve the original intention of establishing board of directors. The operation mechanism’s dissimilation and the“quasi-official”personnel composition make the state-owned company’s governance existed in name only. State-owned Assets Supervision and Administration Commission of the State Council (SASAC) took central state-owned enterprises as the point of penetration to promote experimental work on board of directors in 2004. This reflected the government’s desire of perfecting governance mechanisms of state-owned companies. One time, "the reform of Board of Directors in State-owned Companies" has become a classic reflection of the reform of state-owned companies. However, the 5-year experimental work did not reach the expected target. There are no satisfactory answers to a series of questions, such as how to design the authority of the board of directors, allocate personnel, build assessment mechanism, and perfect incentive and restraint mechanism. This dissertation chooses legal system of board of directors in state-owned company as its object of study, combining principles of company law with our state-owned companies’features, rethinking and reconstructing related regulation. It is desirable that this dissertation could bring much better ideas for the development of the legal system of board of directors in state-owned company.In accordance with the logic sequence, this dissertation puts forward basic theory, role theory, structural theory, performance theory, incentive theory and liability theory. Taking the state-owned company system as the point of penetration, this dissertation explores the role of the board of directors, designs an internal structure from the perspective of functionalism, and sets up assessment mechanism. Based on incentive and restraint mechanism’s perfection, this paper proposes that evaluation results as rewards and punishments standard could press directors to work diligently and do their best to achieve original goals of director system.Chapter One:“On Basic Viewpoint: Analysis of the regulations on the State-owned Company and its Board of Directors in General”. This chapter is the logical starting point of the dissertation which mainly carries out a reclassification of state-owned companies and a basic analysis of the regulations on state-owned company’s board of directors. The reclassification of stated-owned companies system, the key of this chapter, plays a guiding role in this dissertation. The current study and legal practice about building the legal system of board of directors which is based on capital structure pay attention to category design (there are different legal systems of the board of directors in wholly state-owned companies and in state-owned holding companies), neglecting the field which stated-owned companies belong to and the state-owned assets supervision and administration system which shall be taken into consideration about the stated-owned company governance structure. Therefore, the government office regulating on state-owned companies hesitates between "empowerment" and "constraining". This dissertation doesn’t follow the beaten track of the traditional theoretical framework and puts a crisscross thought on the types of stated-owned companies and bases the study on the system of board of directors. As for "crosswise" classification, our stated-owned companies are classified as stated-owned companies in non-competitive areas and stated-owned companies in competitive areas. The former play an "extension of the political functions" role and are not-for-profit service supplies. The former whose essential feature is sociality belongs to Special Corporation and its operation is normally interfered by the government. While the latter is based on the special consideration about the national conditions of China. According to the classic theories of economics, the state-owned companies should completely withdraw from competitive areas. But it can not be accomplished overnight in China and needs to go through a gradual process. During this period, it also has the problem of company governance. The government should keep“the distance of an arm”from the state-owned companies because they are commercial company. As for“vertical" classification, the current state-owned assets supervision and administration system should take three-level management model as“government—the state-owned assets management company—enterprise entity”. The state-owned assets management companies as an intermediate platform play the most crucial role and relate to the success of the whole management model. They dissever direct contact between government and enterprise entity. Therefore, enterprise entity is little affected by government intervention. In contrast, the state-owned assets management companies which face the government directly are affected by over-intervention by government. Protecting its’independence becomes one of core contents of the state-owned assets management system.“Crosswise”and“vertical”types intersecting with each other form the crisscross model of the state-owned companies, which is“state-owned assets management companies v. ordinary stated-owned companies in non-competitive areas”and“state-owned assets management companies v. ordinary stated-owned companies in competitive areas.”Of course, due to the inherent vacancy of“state-owned”investor, the special position of the government, as well as the complexity of principle-agent relationship, no matter for which type of state-owned companies, to build the legal system of boards of directors should reflect independence, profession, as well as strict liability of board of directors on the basis of the state-owned characteristics.Chapter two:“On Role: Authority of board of Directors in State-owned Company”. The authority of board of directors is the primary issue in studying the legal system of board of directors. From law and economic analysis viewpoint, basing on pursuit of efficiency and the special need to protect state-owned assets, this dissertation agrees to the legislative mode of centralization of board of directors in state-owned companies and recommends the expansion of board of directors’decision-making powers and guarantee its supervision powers. This dissertation pays more attention to decision-making powers and designs different powers to board of directors of various state-owned companies. The stated-owned companies in competitive areas should take the model of commercial operation. In view of those non-competitive companies’sociality, the authority of their board of directors should be limited in the field of changing dominant business, altering investment direction and adjusting product price. Since the independence of board of directors is the guarantee of legitimate operation of authority of the board of directors, this dissertation respectively defines the relationship between board of directors and SASAC, party committee, manager’s layer which play an important role to avoid the government over intervention and to prohibit“insider control”. The author of the paper puts forward that relationship between SASAC and board of directors should be changed from authorization relationship to supervision relationship. At the same time, relationship between board of directors and party committee should distinguish the different meanings of“management decision center”and“political core”. As for the relationship between board of directors and managers, the board should strengthen supervision of managers and managers should assist the board.Chapter three:“On Structure: the Internal Structure of Board of Directors in State-owned Company”. Authority design, no matter how superb it is, can only be achieved through good organizational mechanisms. Therefore, the organizational structure of board of directors is the basis of effective functioning of board of directors. In this part, the dissertation thoroughly discusses the size, the structure, the professional committee as well as the selection mechanism of personnel and the chairman of board of directors. In the dissertation, the author thinks that the structure of the board of directors should be designed differently due to different functions of state-owned companies in different fields : board of directors of state-owned companies in non-competitive areas should set up the "333" pattern of check and balance, that is, one-third of government directors, one-third of independent directors as well as one-third of internal directors(executive directors and employee directors). The state-owned company’s board of directors in competitive areas should adopt the mechanism mainly based on independent directors. In addition, in this part, the dissertation pays more attention to detailed analysis about the government director system, the outside director system as well as the employee director system. As for government directors that should be assumed by government officials, the article thinks that the connection between government director and company is a kind of service contract with some political factors which means that government director not only has fiduciary duties to companies but also has specific reporting duties and communicating information duties to the government. As for outside directors, at present the biggest problem is that this kind of directors is simply independent of managers but still dependent on the government,which plays a worse role in achieving the goal of separating governments from enterprises. Although it is beneficial to the inhibition phenomenon of“insider control”, it should evolve in the direction of the independent director system. For employee directors, it is urgent for them to go out of the embarrassment of“amphibious identity”and to make their decision-making based on companies’benefits. Of course, in order to achieve the original design of the system the specific configuration should highlight the characteristics of employee directors to be sure that they can reflect the employee interests on the platform of board of directors.Chapter four:“On Performance: the Construction for Assessment Mechanism of Board of Directors in State-owned Company”. The series of questions whether or not the authority design of the board of directors is reasonable, the organizational structure is scientific, the directors elected is suitable and the right configuration is appropriate must be answered with the facts,which are determined fairly to rely on assessment mechanism. Normative and scientific assessment mechanism is not only the guarantee of the effective functioning of the board of directors but also the important parameters of the selection of the directors of state-owned companies. At the same time it is also the criterion of implementing incentives and restraints. Through establishing the assessment system of board of directors in line with the state-owned companies’characteristics, we could guide and correct behavior of directors, improve their ability to perform their duties in order to achieve effective governance and preserve and increase the value of state-owned assets. The current ways of assessing board of directors include the self-assessment, the assessment by the society, as well as the assessment by the investors. Based on the characteristics of state-owned assets, the dissertation especially emphasizes on the latter, and argues that SASAC has more power to assess. For the assessment content, the author of this paper considers, for an overall assessment of the board of directors, we should pay attention to three aspects, that is, the reasonability of board structure, the responsibility of the board as well as the development and performance of companies; and for the assessment of individual director, we should mainly stress on common criteria and personal standards. The so-called common standard is the fiduciary duty; and the so-called personal standard is the specific obligations based on their origins of system designed for executive director, independent director, government director and staff director.Chapter five:“On Incentive: The Defects and Corrections of the State-owned Company Directors’Incentive Mechanism”. Based on the results of the assessment, the company should inspire the directors to perform their duties better. This is a kind of recognition for "human capital". Therefore, improving the incentive mechanism is one of the key aspects to build the legal mechanism of board of directors. The complexity of principle-agent relationship of the state-owned companies makes the agent opportunism and adverse selection more obvious, so the incentive mechanism of director of the state-owned company is bound to be different from private companies. Such differences are mainly reflected in the following three points: Firstly, the government has the power of supervision and decision-making for the incentive mechanism of directors of the state-owned company. Even though we establish a different decision-making procedure of director compensation for the executive directors, independent director and employee director, investors always have the power of final decision. For the government director, on the basis of the relative system of state-owned companies from abroad, they could not be paid by the company, and their incentive way may be a“well-done and promotion”model. Secondly, the incentive mechanism should be designed to reflect distributive justice of the law. As for the current sensitive problem that the managers of state-owned enterprises are paid more salary, the author of this paper thinks we should not take one-size-fits-all measures, but treat them differently: for state-owned companies in the competitive field, the government should not interfere unduly, and in order to attract managers with ability to work for state-owned companies the incentive should be decided by the market and reflect external equity of the incentive mechanism; as for the state-owned companies in the non-competitive field, the“multiples”management could be adopted, because the performance of the company relies on not only business managers’ability, but also its status of monopoly or national resources. Finally, to protect the fairness of an incentive mechanism, the article considers that we should set up and perfect the limited Judicial Review System, the full Information Disclosure System and special Economic Responsibility Auditing System for the state-owned companies to prevent abnormally high inspiration of the directors of the company to "nibble" company’s interests.Chapter six:“On Liability: Perfection of Legal liability Mechanism of Directors of State-owned Company”. Giving substantial and expected rewards to better players in performance, and effective and expected punishment to business losers should be useful measures of reducing proxy costs. At this point, liability mechanism becomes a guarantee of effective functioning of the board of directors. The author of this paper puts forward related recommendations about the perfection of legal liability mechanism of directors of state-owned companies from three aspects: civil liability, administrative liability as well as criminal liability. As for civil liability, the dissertation, from the perspective of the directors’responsibility to company, put forward measures to improve system concerned. The dissertation specially discussed in detail about the application of business judgment rule to state-owned companies, the feasibility of the first application of the restriction mechanism of directors’civil liability for government directors as well as employee directors, and so on. As for administrative liability, the dissertation mainly questions“unified”approaches of the current system, and thinks that administrative disciplinary measures and administrative penalties should be separately applied on the base of the identity difference between government directors and non-government directors while administrative disciplinary measures should not be taken only because of the company’s“state-owned”status. As for criminal liability, the dissertation mainly analyses“differentiated protection”between state-owned companies and non-state-owned companies, and thinks that equal treatment should be taken in relation to the question of crime and non-crime and formal equality should be also reflected except government directors who still apply to current rules(that is, they should be convicted as public officials), but in the aspect of setting up of specific penalty, on the base of the spirit of criminal law, the directors of state-owned companies should be "severely" punished and the state-owned assets should be given“differentiated protection”in order to realize the substantive justice. In addition, the dissertation also sets forth views about the introduction of the crime of breach of trust into our system and thinks that, in legislation, the introduction of the crime of ordinary breach of trust should be considered and the crime of ordinary breach of trust should be combined with the existing crime of particular breach of trust in order to build a legislative model reflecting the legal principle and flexibility, and safeguard the interests of clients.更多还原