The Research On The Legal Problems In Corporate Supervisory Mechanism

With the separation of ownership from managerial authority in modern corporate property structure, which makes shareholders control and manage corporation indirectly, the corporate management pattern of"Management by the owner"is replaced by"Management by the consignee", resulting in the conflict of interest between the owner and operator inevitably. Therefore, under the operator's actual control of corporation, it becomes one of fundamental tasks of Corporate Law that how to establish an efficient supervisory mechanism and a system of checks and balances and strengthen the restriction and control of the actual operator.As an organic component of modern corporate system, the function of corporate supervisory mechanism can ensure the normal operation of corporation and protect the legitimate rights of the investor and all that benefits, for which all countries have established effective corporate supervisory mechanism. China's Corporate Law has established an internal corporate supervisory mechanism with the board of supervisors as supervisory body, but the effect is entirely different, for example, the insider control in corporation, the infringement of shareholder's rights, the formalization of supervision mechanism, the shortage of supervisory resources. Theoretical and legislative circles actively explore and seek the supervisory system suited to our national conditions that has become an important topic in the area of Corporate Law. I think the improvement of corporate supervisory mechanism should take into account the reasonable design and effective integration of the current supervisory system as well as expand the supervisory access and coordinate the relationship among different supervisory means. This article firstly analyzes the fundamental theoretical problems existing in corporate supervisory mechanism, and then proposes methods to perfect the corporate supervisory mechanism in China, comparing with those of typical countries, to seek a supervisory mechanism conformable to national conditions that can change the situation of corporate supervisory mechanism.This article is composed of four chapters.Chapter 1: The analysis of several fundamental theoretical problems involved in corporate supervisory mechanism from three points of view. Section 1 indicates that corporate supervisory mechanism is the natural requirement for the separation of ownership from managerial authority in modern corporation, and the key to resolve the problem of agency in corporation and insider's control, on the analysis of the need of establishment of corporate supervisory mechanism. Section 2, analyzing the resource of the corporate supervisory power, presents the diversified origin of corporate supervisory power now in stakeholder, nation on behalf of public interests and the public from unitary origin of that only in shareholder with the development of corporate theory in the past. Section 3 discusses in detail the contents of corporate supervisory system from the supervisory body and object.Chapter 2: The analysis and comparison of corporate supervisory mechanism in typical countries and the introduction of corporate internal supervisory mechanism. Section 1 briefly introduces the corporate supervisory mechanism in America, Germany and Japan etc. with indicating different characteristics of those. Section 2 analyzes and evaluates concisely the corporate supervisory mechanism of the countries hereinbefore, and furthermore discusses that the key to choose supervisory system depends on whether it conforms to the economic and cultural tradition of the nation, and the aim that it can effectively supervises and restrains the corporate operator. Section 3 introduces the recent reformative measures on corporate supervisory mechanism of these countries. Section 4 discusses the corporate internal supervisory system in our country, in which board of supervisors is established as a special internal supervisory organ, and meanwhile independent director system is introduced into listed held company by borrowing from Britain and America.Chapter 3: The exploration of the problems and deficiency in the system and practice of corporate supervisory mechanism under the background of Corporate Law 1993. It lays emphasis on the problems in corporate internal supervisory mechanism in our country, representing as the lack in the supervisory power in annual general meeting and individual shareholder, the absence in the supervisory power of board of meeting to manager, exploring into the deficiency in corporate external supervisory mechanism.Chapter 4: The feasibly detailed measures to perfect the corporate supervisory mechanism with respect to the problems and deficiency in supervisory mechanism in our country grounding on the 2005's amendment of Corporate Law. Section 1 raises some measures to perfect the supervisory mechanism starting with internal supervisory mechanism. Beginning with external supervisory mechanism, Section 2 provides some feasible schemes to get the aim of forming an effective system on supervision and regulation with expected by the interactive function from both internal and external supervisory mechanism.