Background背景
 
To strengthen the authority of the shareholder's meeting 加強(qiáng)股東大會(huì)的權(quán)威  
1 to strengthen the cause of the shareholders of authority
 
(1) the shareholders' committee or the general meeting of shareholders is composed by all the shareholders of the company authority. The shareholders' committee or the general meeting of shareholders is the company's legal authority, in addition to the company all company must be set up; Company ideographic organs, within the scope of their functions and powers in accordance with the law of a resolution, the formation of the meaning of the company; As the company's organ of authority, the resolution by the board of directors is responsible for the execution and report. The shareholders' committee or the general meeting of shareholders and the board of directors and board of supervisors together form the company's organization, form all its power, the mutual connection and restriction of the modern corporate governance structure.
 
(2) the shareholders of a company enjoy the capital proceeds, participate in making important decisions and selecting managers and other legal rights, mainly through the shareholders' committee or the general meeting of shareholders. Playing down the new "company law" administrative color, enhance the company's rights at the same time, the allocation of rights within the company, pay attention to tilt to the shareholders' committee or the shareholders meeting, to ensure that shareholders exercise of power by the shareholders' committee or the shareholders meeting, and maintain their own interests. Although foreign company law from the run efficiency consideration, there is a from "shareholder meeting center doctrine" to "the board of directors center doctrine" of evolution, but in view of the lack of internal constraints exist in the corporate governance structure in China and the defects of lack of market supervision, to protect the rights and interests of minority shareholders, strengthened the rights of the shareholders' committee or the shareholders meeting is necessary.#p#分頁標(biāo)題#e#
 
2 strengthen the power of the range
 
(1) general statutory functions and powers. Namely, in accordance with the "company law" regulation, major problems in the operation of the company shall be determined by the shareholders meeting or the shareholders' meeting to discuss, including: (1) determining the company's operation guidelines and investment plans; (2) electing and replacing the be held by a representative of the staff of the directors, supervisors, decided to remuneration for directors, supervisors, (3) approved the report of the board of directors; (4) the approval of the board of supervisors or the supervisors review report; (5) approved the company's annual financial budget and final accounts; (6) approved the company's profit distribution plans and plans to cover company losses; (7) to increase or decrease the registered capital a resolution; (8) a resolution to issuance of corporate bonds; (9) to the company, merger, division, dissolution and liquidation or change of company form a resolution; (10) to modify the company's articles of association, etc.
 
special statutory functions and powers. May encounter some special issues in the operation of the company, on the basis of "company law", "securities law" regulation, must by the shareholder meeting resolution, without its consent. These items are mainly: the company shareholders or actual controllers provide guarantee for the company; Business term expires or other reasons for dissolution as stipulated in the occur and need to make the company's survival; A director or senior personnel to enter into a contract with the company or trading; A director or senior executives seek belong to the company's business opportunities for himself or others, proprietary or for others and for the same kind of business; Joint-stock company issuing new shares, apply for shares; Listed companies issuing corporate bonds convertible into stock; Corporations change in the listed capital USES in the prospectus; Determine the personnel composition of company liquidation group, confirm the liquidation group in the cleaning company property, preparation of balance sheets and checklists of properties, and the liquidation scheme. Among them, the company issuing new shares, the general meeting of shareholders shall be new species and amount, the issue price, the commencement date and to the original shareholders of issuing new shares of type and amount of a resolution. Co., the relevant resolutions of the shareholders' general meeting, it is the application for stock issuance and listing of files.
 
(3) the functions and powers prescribed in the articles of association. The company for some significant issues related with the company or shareholders, can according to oneself circumstance, respectively by the articles of association of the agreement is determined by the shareholders meeting or shareholders' assembly or the board. If, in accordance with the provisions of the articles of association is decided by the shareholder meeting, must be made by the shareholder meeting resolution. Usually these matters must be a resolution by the shareholders meeting are: company to other investment; In property company to provide guarantee for others; Big asset transferred, the transferee company; Will lend money to other company; Company hire, discharge to undertake business of certified public accountants audit, etc.#p#分頁標(biāo)題#e#
 
(4) other functions and powers.
 
A: the law needs to emphasize the autonomy of the shareholders' committee, rather than legal compulsory. At present, the shareholders' committee shall be formed watchdog, ensure the normal running of the shareholders' committee. B: shareholders shall have the right to the company and the board of directors and managers of malpractice lawsuit, this is a fundamental right of shareholders. We can imitate the Anglo-American countries, shareholder lawsuits can be divided into direct action and derivative action, namely when the damage the interests of shareholders is accused of wrongdoing, apply direct litigation; When the damage the interests of the company is accused of wrongdoing, has filed a lawsuit on behalf of the company by shareholders, namely the derivative action.
 
C: further perfecting the information disclosure of the timeliness and scope, perfecting the information disclosure obligations due to illegal or in violation of legal liability, the shareholders' committee members often can only be achieved through these information of the company's operating performance, and make an evaluation, so the timeliness and accuracy of information to the protection of the rights of shareholders understand yourself.
 
D: to the protection of minority shareholders, I think can allow small and medium-sized shareholders will share for whole unity, to counter the large shareholders; For the company's decision to major events, such as bankruptcy, must comply with a stake through.
 
(2) how to strengthen the shareholders (big) flaws
 
Our country "company law" the 111th regulation: "the general meeting of shareholders, the resolutions of the board of directors violate laws, administrative regulations and infringes upon the lawful rights and interests of the shareholders, the shareholders shall have the right to the court to stop the illegal act and infringement litigation." The rules established the resolution of the shareholders' general meeting of shareholders for defective legal relief system, but this is just a kind of remedial measures, and only in the resolution of the shareholders' meeting in violation of laws and administrative rules and regulations, and violation of legitimate rights and interests of shareholders "applies, too many restrictions, cannot adapt to the needs of real life, at the same time, also the lack of operability. The shareholders meeting resolution flaws of legal remedy is to make the interests of the shareholders, etc have v. benefit from any defect in the resolution of the shareholders' general meeting, or in the interests of the damage after can make up for, to restore and for legal justice and set up a kind of measures and ways, therefore, its relief should be a variety of forms. The author thinks that, regardless of the company system's architecture, or after the judicial relief safeguard, is to prevent and avoid the shareholders meeting resolution flaws and make up for defects and damages including or lack of means. In this sense, the shareholders meeting resolution flaws of the legal relief system should include at least the following contents:#p#分頁標(biāo)題#e#
 
1 resolution flaws of cure.
 
The shareholders meeting resolution for procedural violation of the provisions of the law or the articles of association and cause of defects should be allowed under certain conditions be cured, the resolution can be considered as made in accordance with the law. Abroad to the defects of cure most decisions of the company, but the cure measures apply only to procedural defects and flaws in shall not apply to the content. Look from the provisions of the countries, are defective in the notification procedures, can be based on the part of the consent of the shareholders and be cured; If the defects for all shareholders to exist, also depends on all the shareholders agreed to be cured. Such as the program without prior notice, can on behalf of the shareholders of the company's total capital, under the condition of all the directors and of all the supervisors attend, general meeting of shareholders as a meeting in accordance with the law. (note: see the Italian civil code, under paragraph 3 of article 266.) Such shareholders' general meeting convened resolution by the board of directors established legal basis appeared defects, if all the shareholders to attend, of shareholders' general meeting shall be deemed to be optimal method. "South Korea commercial law" the 573th regulation: "in co., LTD., if all members agree that without the called procedure can hold the member's congress." South Korea's Supreme Court on February 26, 1993 is a case which clearly pointed out that although there are defects, called the resolution of the board of directors didn't even call resolution, but when all the shareholders to attend, of shareholders' general meeting shall be deemed to be optimal method. Our country "company law" of program defects to cure problems if there are no relevant provisions, yet to be confirmed in corporation law changes in the future.
 
2 shareholders' voting rights.
 
Limits is to prevent the purpose of shareholder voting rights because of the relevant shareholders the right to vote and damage the interests of other shareholders. The limitation on the shareholders' voting rights mainly includes three aspects: one is restrict each other shareholder voting rights; The second is particularly interested shareholders' voting rights restrictions; Three is to restrict large shareholder's voting rights. Two independent to each other companies of or more than three loop between by state called each other. All the shares of each other company operators in each other's general meeting of shareholders to exercise their voting rights. If its shares can be fully controlled each other company's size, so the operator position depends on each other. Based on this, the operator in the second term on issues such as each other together, can produce permanent operator's control. Operator can be a real scientist, no scientist can also indirectly controlled their general meeting of shareholders of the company. So that the operator be neither belong to others, also not to others responsible for sustainability. Our country "co., LTD. Specification opinion" in paragraph 2 of article 24: "a company with more than 100% of the shares of another enterprise, the latter can't buy a stake in the former." The starting point of the rule is to avoid a series of problems caused by the holding each other. But the rule is not a total ban on holding each other, nor make any restrictions on mutual shares voting rights. If A company has B company less than 100% of the shares, B shares in A company can still be achieved, still can cause capital inflated, (note: assume that capital increase of 1 million yuan, A company B company capital 1 million yuan, and subscribed capital and part of the A and B company capital increase of 2 million yuan, capital of 2 million yuan only is actually A, B company capital contribution within them, net assets did not increase.) Company to control distortion and the destruction of the social group (note: if B and C company holds A 50% stake in A company, such as A, C company holds 50% stake in B, A, B company such as holding C 50% stake, then, A, B, C company have lost A member of the legal foundation of company, even if the dissolution of even distribution of residual property cannot be.#p#分頁標(biāo)題#e#
 
Two relevant legislative Suggestions of the board of directors兩個(gè)董事會(huì)的相關(guān)立法建議 (1) to further restrict the power of the chairman
 
In the new company law of our country has cancelled the original giving the chairman of the special power, only keep the chairman at the meeting presided over by the board of directors or shareholders have special functions and powers, in the company's management decisions, each director resolution have equal rights. Also at the same time, the new "company law" has made a more flexible rules to company's legal representative, will be the chairman of the board of directors for the company's legal representative modification for the company's legal representative in accordance with the provisions of the articles of association by the chairman of the board, served as executive director or manager." These provisions in a certain extent, solve the President too much power, obstructing the collective decision by the board of directors of the problem, but still not solved, the chairman of possible abuse. To this, the author thinks, can draw lessons from some countries or regions the regulation in company law, the board of directors may authorize one or more directors individually or jointly responsible to deal with specific management matters, or in a certain behavior, unless otherwise provided by the articles of association. For company important property disposition, huge borrowing or provide guarantee for others, managers and other senior management personnel appointment and dismissal, branch, such as organization setting, alteration, cancellation and other such matters shall authorize the chairman decided independently. Legislation in our country shall be the chairman of the board of directors may be appropriate limits and to prevent misuse of the power, in order to maintain the corporate governance checks and balances.
 
(2) from the legislative ban chairman concurrently hold the position of manager
 
In the United States, is to allow the chairman and CEO position by a person holding, especially when larger companies. Because of the independent director system is perfect, especially accounted for the vast majority of independent directors on the board, the independence of the board of directors is relatively high, the chief of the establishment of the independent director system also limits the chairman and CEO position by a person who brings negative effects. In addition, more mature manager market and capital market makes the chairman and CEO of the governance structure of restricted by effective external competition in the market. But even so, 2000-2002 big companies such as enron's shares tumbled and governance after the crisis, the American lawyers also chairman and CEO of a system being questioned. They pointed out that "corporate governance should be the basic governance principles of regression, the board of directors as the shareholders of the agent shall undertake the responsibility of supervision and managers, and help managers focus on overall return to shareholders." The independent director system in our country is still at the exploration stage, the internal restriction mechanism and external restriction mechanism of the board of directors has not been effectively set up, in this case, the chairman of the board of directors and managers by a person who is obviously not appropriate, will lead to more serious one authoritarian phenomenon and the insider control problem. The author thinks that, therefore, should from the legislation to ban limited liability company chairman of the board of managers, in order to better avoid one chairman authoritarian, guarantee the independence of the board of directors to run, to realize the board effective internal checks and balances.#p#分頁標(biāo)題#e#
 
(3) cancel manager authority legal
 
Manager as auxiliary board permanent actuators to perform business, its supporting position determines the manager's functions and powers, shall be issued by the board of directors according to the scale of the company to grant, institutional Settings, and so on and the circumstances. In this way, both is advantageous to the board of directors to supervise the manager in the implementation of the business, also can strengthen the manager of the board of directors. But the manager of the company law of our country, delimitation of their functions and powers, combined with practice, the vast majority of managers are appointed by the shareholders' committee directly, severely weakened the supervision of the manager, the board of directors and managers pay more attention to in appointed to his shareholders, especially the large shareholders is responsible for rather than to the board of directors, the board of manager's power and firing power don't exercise. Therefore, the author thinks that, to solve the problems of the directors and managers authority confusion, the first thing to solve, to legalize is cancel the authority of the manager, by the board of directors according to the company specific situation is regulated in the articles of association of the manager's functions and powers.
 
Three relevant legislative Suggestions of the board of supervisors監(jiān)事會(huì)的三個(gè)相關(guān)的立法建議
 
(1) with the company law as the core to strengthen the internal supervision mechanism, and standardize the operation of the external supervision mechanism.
 
Supervision and checks and balances is a science and system engineering, which involves the traditional field of private law and public law in terms of the various systems, also involves the company shareholders, creditors and other social organizations, government departments and judicial organs supervise power of mutual penetration, cross and constraints. If the "company law" the regulation of the board of supervisors to supervise the company day-to-day operations is called the "internal supervision mechanism", then, the external supervision mechanism is avoided in the company internal checks and balances and oversight mechanism failure may occur when the harm the interests of companies, shareholders and creditors, to prevent corruption and abuse of power company cause the damage to the social public interest, by the company, securities, antitrust, audit, bankruptcy, the criminal legislation, such as building outside the company by the government, the judicial organs and social intermediary organizations as the main body of the power monitoring system.
 
In western countries, the company of the supervision mechanism is given priority to with internal supervision mechanism, with external supervision mechanism is complementary, internal and external supervision mechanism of bring out the best in each other, jointly maintain the normal operation of the company. Just for the company's external supervision mechanism, although the national law tradition, the company system and the market environment is different, its regulation is very different, but it also contains many similarities. On the one hand, the external supervision mechanism of western countries are mostly based on the mature and developed market economy, and strong tradition of civil and commercial law. On the other hand, the company's internal supervision mechanism is the self-discipline and supervision of the company, the company's external supervision mechanism is relying on jurisdiction and the government's administrative power to rights and interests of the victim relief, wanton prevent corporate power, is a kind of relief. In addition, the start of external supervision mechanism of western countries have strict application requirements, generally less with judicial power, executive power intervention company micro economic affairs.#p#分頁標(biāo)題#e#
 
Unlike western countries, our country is in lack of commercial law tradition, the background of the market mechanism is not sound began to enterprise's corporate reform and the establishment of modern enterprise system reform. As a result, the company checks and balances relationship, external supervision mechanism is extremely bright zone enterprise supervision mode under the traditional planned economy. Administrative department of the government as the main body to administrative power to the enterprise microscopic economic affairs directly or indirectly intervention as the main behavior, is characteristic of the external supervision mechanism in our country. To executive power as the main body of public rights monitoring checks and balances plays a main role in the company, by contrast, the role of internal checks and balances and influence is extremely weak. Mainly displays in: (1) the construction of legal system focusing on outside the company set up the administrative counterweight, and to perfect the company law of the internal supervision and checks and balances are concerned about is not enough; (2) the formal internal checks and balances, also makes the checks and balances the realization of the purpose to excessive dependence on external monitoring force.
 
There is no doubt that the company too powerful external supervision mechanism, is the internal supervision mechanism, namely the system cannot be one of the reasons for the effective functioning of the board of supervisors. According to the requirement of market economy, and draw lessons from the advanced experience of foreign company supervision mechanism, with the company law as the core to strengthen the internal supervision mechanism, restriction and standardize the external supervision mechanism, the key points in company law system construction of the board of supervisors, is a necessary choice to perfect our company board of supervisors system. This effort not only in harmony with the progress of the socialist market economy in our country, make up the defects of existing system, but also to prevent company timely, effective and economic consequences brought by the abuse of power. First, as soon as possible, improve the system of board of supervisors in the company legislation, build effective internal supervision system. Reconfigure the functions and powers of the board of supervisors, for example, improve the selection of the board of supervisors reconciliation system, guarantee the board of supervisors in accordance with the law, independently exercise supervision in accordance with the articles of association, strengthen the obligations and responsibilities of supervisors. Second, strengthening the management of the standardization of the company and make certain of the board of supervisors system of practical work. Again, restrict and standardize corporate external supervision mechanism of operation, to prevent the external supervision mechanism, normal production and business operation activities in the company. Although the external supervision mechanism as to maintain fairness and justice at the end of the guarantee is necessary, but there are still quite a number of administrative power in our country through the department of legislation, in the name of the so-called implementation macroeconomic regulation and control, market supervision, to belong to the company in the field of micro economy, especially the state owned company and state-owned holding company affairs department directly intervention, bungling, stepped in and exploitation enterprises, and openly extending its life all in the name of legal supervision. This obviously with the goal of the economic system reform in our country. If not properly restrict and standardize the creation of external supervision mechanism, to be sure, only can cause a variety of external power, especially the expanding of administrative power. Therefore, restricting and regulating the operation of external supervision mechanism, prevent external supervision mechanism of excessive intervention in business has become a prerequisite to perfect our company board of supervisors system. Finally, in the company, securities, antitrust, pay attention to the internal audit, such as bankruptcy, the criminal legislation in effective connection, external supervision mechanism, make internal and external mechanism to form resultant force, effective surveillance network.#p#分頁標(biāo)題#e#
 
(2) to give the legal status of independence of the board of supervisors
 
Law gives the power of supervision of the board of supervisors, and can effectively exercise the supervision of the board of supervisors, to a great extent, depends on whether it can keep its own independence. That is to say, independence is the soul of the company board of supervisors system and keep its own independence is the basic premise effective performance of the supervision of the board of supervisors. Therefore, the author thinks that, in our company legislation should be given in the following several aspects to the supervision of the supervisory board, independent status:
 
1 to maintain the independence of the organization of the board of supervisors
 
With modern company to realize the separation of ownership and management rights, the company's internal management control and supervision are set up respectively, in control of the board of directors and board of supervisors became the two typical form of the legal person of corporate power organ. So, in theory, the board of supervisors is independent in the organization. This requires that members of the board of supervisors and the decision makers and managers of the company or associated company there is no administrative subordination, supervisor and colleagues relations between. The current "company law" in our country have made relevant provisions: art. The supervisors in the negative qualification in detail; Article 52 of the board of supervisors by the representative of shareholders and the appropriate proportion of company worker, the worker representatives of the board of supervisors elected by company worker; Article 52 and article 57 and article 58, 124 respectively the director or the general manager and financial officers and civil servants shall not concurrently hold the position of a supervisor. However, these rules are summarized and not comprehensive, and more importantly, state-owned shares absence "shareholder", and the defect of the board of supervisors system of personnel, it is difficult to guarantee the independence of the organization of the board of supervisors. In view of this, the author thinks that, in the revised the company law in China should be clear the following content: (1) set up specialized agencies responsible for state-owned assets management, state-owned shares to reverse the current situation of the absence of "shareholder"; (2) in "company law" specific provision in the company shall set up permanent offices of the board of supervisors or the board of supervisors must be selected for at least an executive supervisor (standing supervisors), performed by its daily supervision function; (3) of wholly state-owned companies and state-owned holding company, the provisions of the board of supervisors must have at least one recommended by the state-owned assets supervision and administration department supervisors (note: not recommended by state-owned assets supervision and administration department supervisors is the national civil service, and should be have a certain financial management experience and knowledge of economic management accounting, auditing, personnel, lawyers, etc., their duty is mainly check the company's financial status, to prevent the company management abuse power for personal gains, resulting in the loss of state-owned assets. At present, Japan and China Taiwan region legislation is to take the supervisors must be more than one person in the system for personnel outside the company, in the maintenance of the independently exercise their power of supervision of the board of supervisors play an important role.) And the chairman of the supervisory board (standing supervisors or convener) and chairman of the board of directors of the company, vice chairman of the board of directors, managers can't out of the same shareholders; (4) more than a third of the member of the board of supervisors by the workers' representatives, (note: on May 15, 1992 promulgated the "co., LTD., a standard opinion" the 64th regulation: "more than one third (1/3) of the member of the board of supervisors, but no more than 1/2 be held by a representative of the workers", but cancelled the company law, the force ratio regulation, and allows a company to prescribed by the articles of association. Because of the company's articles of association shall be formulated by the shareholders (mainly large shareholders), the articles of association may make only the worker representatives of the supervisory board "decoration", not form restrictions. But it is worth noting, announced on December 16, 1997 "listing the company's articles of association to guide" the 129th, the ratio was hard and fast rules for "company worker representatives as the supervisors of the supervisors shall not be less than a third of the number of". Say that to some extent represents the trend of the development of the company legislation in China.) Democratic management, in order to realize the worker, facilitate timely found the problem of the board of supervisors, fully effective use of the supervisory board supervision function; (5) the law can authorize the prescribed in the articles to absorb part of the well operations, finance, knowledge of policies and regulations of social shareholders to sit on the board of supervisors, make all kinds of specialized personnel have a reasonable collocation, complementary advantages, to form the overall effect. Second, ensure the independence of the board of supervisors and effectively exercise the power of supervision. The board of supervisors shall have the right to independent exercise supervision and inspection, within the scope of their statutory functions and powers is not subject to interference by the shareholders, directors, managers and constraints, which requires to provide legal safeguard for the board of supervisors to exercise supervision and economic security.#p#分頁標(biāo)題#e#
 
On the one hand, China's current "company law" although gives to all the functions and powers of the board of supervisors, but necessary expenses for the supervision of the supervisory board source reasonable regulations have been made. No independence of the board of supervisors of money, not financially independent makes to the board of directors of the board of supervisors or managers, to ensure our funding. Therefore, in the perfect company legislation shall stipulate, in exercising their functions and powers of the board of supervisors need to hire a lawyer, certified public accountants and auditors to assist the review and investigation, the resulting fees shall be borne by the company; The board of supervisors shall have the right to advance the necessary expenses for execution supervision business from the company, the company in addition to prove its unnecessary, shall not be rejected.
 
On the other hand, from the point of relative clauses of the company law in our country, our country's supervisors system of collective exercise their functions and powers. Supervisors exercise of power is the basis of collective decision of the board of supervisors, through the application of the resolution in accordance with the "company law" the 127th regulation is to determine by the articles of the company, the company's articles of association is usually conducted by the originator (typically director), the mechanism of formation of the board of supervisors to supervise the directors, managers and other senior management personnel, there is certainly a problem. In order to improve the system of company board of supervisors, to ensure that the value function of the board of supervisors, give full play to the company law in our country it is necessary to bring in some countries and regions in the system of supervisors independently exercise their functions and powers of company legislation. Japanese commercial law's supervisors system of separate exercise their functions and powers, the supervisors have business supervision and accounting supervisory authority, at the same time as a corporate authority independently perform their duties. In business law in Japan has the regulation of the supervisors' meeting system, but the supervisors' meeting just coordination institution, its resolution is not restrictive to the supervisors of individual activities, the supervision of the people think if supervisors meeting resolution hinders their own independent supervision rights, you can ignore the resolution and independent action. Our country Taiwan is stipulated by the regulations of the supervisor system of independent exercise their functions and powers. Supervisors exercise functions and powers independently part system is helpful to prevent collusion between supervisors and directors and impede the exercise of supervision, to avoid the each other between the supervisors.
 
2 establish incentive constraint mechanism, the independence of the supervisor responsibilities#p#分頁標(biāo)題#e#
 
In the maintenance of law and strengthen the power of supervision of the board of supervisors and their independence at the same time, must strengthen the responsibility of the board of supervisors, the security of the supervisory board has coordinate with each other. First of all, in the company law expressly provide the remuneration of supervisors and their job performance, have significant performance reward; Good supervisors by the shareholders recommend, can get the next priority supervisors or director's nomination. Second, legislation is not only endowed with functions and powers of the board of supervisors, but also should confirm its should undertake the obligations and responsibilities (note: see Mr Cheung hing, Ma Xiangjun some idea of the perfect our country company law on the board of supervisors system ", take the economic and law, 1998, 6-10 page 11.) (1) the supervisors should report to the board, if there is a false report content and major omissions, the supervisors shall bear the responsibility; (2) supervisors should be attached to the agency company interim report and annual report, financial decisions, the prospectus and other documents, if there is a false report content, important omissions or misleading, etc., the supervisors should be the same as the director of the negative responsibility; (3) supervisors can't timely, reasonable and effective exercise of supervision and make the company or the third person suffered, the supervisors should be held responsible for the company or a third person, and for the company directors and managers of the company or jointly and severally liable for the third person; (4) supervisors dereliction of duty or damage the interests of the company, the shareholder may make a written request to the board, to prosecute a supervisor. By modifying the existing "company law", endowed with independent legal status of the board of supervisors, to make the supervisors and the board of supervisors in accordance with law, independently exercise their power of supervision, and is not affected by the board of directors, managers or other personnel's interference, also make the board of supervisors in the corporate governance structure in real play to the readjustment of the separation of powers.
 
3 by strengthening the supervision function of the board of supervisors and expanding company legislation supervision authority
 
Western scholars believe that the board of supervisors will cause power supervision intervention, hinder the company management control, will be on the board of directors and the manager of the operation and management activities such as wall, make the agency cost rise. However, the actual situation of our country enterprise corporate reform is not the authority of the board of supervisors, but is too small, and the supervision of the implementation of the lack of legal protection, caused the phenomenon of functions of the board of supervisors. On the contrary, the powers of the board of directors and managers too large and the lack of effective supervision, so that to do everything. Is precisely based on this, the author thinks that, in the process of company legislation in our country should expand the board of supervisors of supervision authority, rather slow, steady some enterprise corporate reform development, nor impatient for success, only in this way can our country enterprise of corporate reform in less gratifying achievements at the same time to pay tuition, little detours.#p#分頁標(biāo)題#e#
 
Companies around the world legislation specified in the board of supervisors system is divided into four patterns, namely the company supervision and participation in decision-making model, the company's business management supervision mode, the company's financial affairs supervision mode, any choose a business supervision mode to the articles of association of the company, however, no matter the company what kind of pattern of the board of supervisors system is prescribed in the legislation, legal configuration to the powers and authorities of office of the board of supervisors are consistent with supervision target. Configuration in the existing "company law" to the powers and authorities of office of the board of supervisors, obvious is unable to match the company expected legislation supervision target, therefore, it is necessary through perfecting legislation to strengthen the power of supervision of the board of supervisors.
 
Conclusion結(jié)論

First, the enforcement power company's business situation. The company law should not only give financial supervision of the board of supervisors, enforcement power should also be given the company's business situation. The board of supervisors of the company's financial and business condition investigation and inspection, and shall have the right to chairman of the board of directors, managers are required to submit the report. To execute the business director or the general manager in performing duties of violation of the laws, regulations or the articles of association, the board of supervisors shall have the right to not only to stop and correct, and there are compulsory requirements and its directors, managers to correct the situation in writing to the shareholders' committee or the board of directors. Law also should be special provisions, and state-owned holding company board of supervisors of a wholly state-owned company in a survey carried out for the company's business at the same time, should also be in accordance with the relevant laws and regulations of the government to evaluate the enterprise the management efficiency and the value of state-owned assets, state-owned assets administration department and the relevant questions to ask, for a state authorized investment entity or state authorized department provides the basis for making important decisions.
 
Second, the personnel to supervise. Legislation should give the personnel supervision of the board of supervisors in the company, in order to strengthen the supervision of the board of supervisors. For the conscientious and make significant contribution to the development of the company director or manager, the board of supervisors shall have the right to suggest to reward the shareholders' committee or the board of directors; For the incompetent directors or manager, also have the right to claim to the board of directors of the shareholders meeting resolution of the board of supervisors.#p#分頁標(biāo)題#e#
 
Third, on behalf of the company. In the following cases, the board of supervisors shall have the right to operate on behalf of the company: (1) when disputes arising between company and the directors, the supervisors shall have the right on behalf of the company and director of litigation; (2) with the director on behalf of the company related matters (such as a director for higher wages, director to deal with the board of supervisors); (3) in case is the director and the company, has the right to negotiate on behalf of the company signed a contract; (4) should be the minority shareholders the right to ask (generally more than 5% of shareholders' rights), on behalf of the shareholder lawsuit against directors; (5) in the company establishment, dissolution, capital increase, reduce its registered capital, the company raised through issuance of new shares, bonds, together with the director on behalf of the company to the registration authority shall go through the formalities of registration, alteration or cancellation registration.
 
Fourth, specially convened rights of the shareholders' meeting. The current "company law" article 54, 126 although the regulation of the board of supervisors shall have the right to propose for an interim shareholders' general meeting, but the board of supervisors shall enjoy the right of just offer, rather than the right to special summon, the board of supervisors "proposal" often get due protection. Therefore, we should change the current legislation of exclusive enjoys the right of shareholders' meeting convened by the board of directors, given the extraordinary shareholders' general meeting of the board of supervisors specially convened. Is stipulated in the company law, the board of supervisors think necessary and put forward a proposal after two months of the extraordinary shareholders' general meeting, if the board still not of shareholders meeting, board of supervisors may exercise the right of specially convened, and the chairman of the supervisory board (standing supervisors or convener) served as the chairman of the meeting.
 
To sum up, the company board of supervisors system is system of commercial companies after hundreds of years of development, and gradually form is an important part of corporate governance structure, is the company's authorities the inevitable choice of the separation of powers, to reduce the agency cost. Implementation of the company law of our country and the enterprise in the process of corporate transformation, the company board of supervisors system due to factors such as idea, system and legislation, and failed to play its proper value, and even produce blur phenomena of the board of supervisors. This obviously doesn't accord with our country socialist market economy development and the establishment of modern enterprise system request. Therefore, it is necessary from the Angle of legislation by the perfection of legal system of the board of supervisors to the company, promotes our country existing system and the transformation of the concept, system and change the concept of legislation of to progress and development, for our country the establishment of the socialist market economy and national economy sustained, stable and healthy development to provide strong guarantee.#p#分頁標(biāo)題#e#
 
Main reference主要參考文獻(xiàn)
Book class
1 Mao Yamin: comparative study law, China legal publishing house, 2001
2 MeiShen reality: the theory of modern corporation institution authority structure, China university of political science and law press, November 1996
3 GanGongRen Shi Shulin: research on the legal system of corporate governance, Peking University press, 2007
4 Li Yulong xiao-lei zhu: "corporate governance law practice, law press, 2006
5 Shen Sibao: "the theory of international commercial law from" (volume 2), law press, 2000
The second paper class
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