Board-of-Director Centralism And The Corporation Legislation Of China

Since the corporation mechanism established, people have been inquiring into the mode of corporate governance all the time. The manifestation of the proposition in Corporation Law is how to make equitable distribution of corporate power among the corporation organization. Exactly speaking, that is how to define the legal status between shareholder's meeting and board of directors. Based on the analysis of corporation lawmaking in china, the thesis investigates board-of-director centralism and improvement on the corporation legislation of china.The thesis is divided into four parts. The first chapter releases the interpretation of board-of-director centralism. On the base of introducing its concept, it describes the lawmaking expression of board-of-director centralism. It carries out a standpoint that it can be carried out drastically only that the center position of board of directors is embodied in the positive law. The efficient organization structure is the key to economic growth. Therefore, the supervision is requested by corresponding mechanism to board-of-director centralism at the time of enhancing a board of directors'power, insuring board of directors can carry out the benefits of corporation and shareholders to maximize more efficiently.The second chapter elaborates the spanning of board-of-director centralism. As a mode of corporate governance, board-of-director centralism is the demand of the corporate scale development. It is also inevitable outcome of the separation of ownership and management right. Along its formation background, the thesis analyses the value of board-of-director centralism. It is necessarily to take up the leading role in the corporation because board of directors has so many functions as business performance, management decision, supervision and moderation. Board-of-director centralism correctly strengthens these functions. During its development, board-of-director centralism consummates itself constantly. On the other hand, board of directors strengthens inner supervision by building up an evaluation mechanism; On the other hand, it balances the internal structure from the comparison between inside director and outside director and establishing exclusive committee.The third chapter analyzes the position which a board of directors takes up in lawmaking and fulfillment of the corporation. The first section is about defining to board of directors in Corporation Law. It is very obvious to emphasize the logic of centralization of plenary session of shareholder in Chinese corporation lawmaking. Firstly, board of directors who is lack of independence possesses limited legal power. Secondly, board of directors' right and duty are out of balance. There are not explicit provisions in corporation law on the position to director or corporation law relation of the property, lack of the standard to judge the breaching. It is not definite to the corporation creditor whether board of directors needs to be responsible for the third people and whether undertakes responsibility. And the position to president also appears misty. The second section is about its actual position, first explaining board of directors to manage the core position in the reality. But because of lacking legal guarantee, board of directors has to ask for help shareholders' meeting to really recognize then can carry out its management decision by law. This condition causes board of directors hug power to hold with dignity from here, using the resolution of shareholders' meeting as amulet, which thus makes its responsibility hard implement. Secondly, lacking of independent operation as premise, the situation that board of directors is controlled by big shareholder is still hard solved effectively because the lawmaking enhances the highest foundation of shareholders' meeting power. Furthermore, many managers owned physically the power outran legal right consumedly, even laying hands on parts of powers to board of directors. In the end, this stanza discusses the phenomenon that board of directors is subjected to Party Committee also limits the developing of board of directors. As a textual innovation part, the forth chapter releases the textual point about board-of-director centralism and the perfect to corporation legislation in china. With a foothold in the value of board-of-director centralism, combining the problem existed in our corporation lawmaking and practice in the operation, this text puts forward our corporation lawmaking should use the legislative experience of foreign company to perfect the mode of corporation governance. The first section is about establishing board of directors the core position in the corporation. The function of board of directors is vitality. Whether it can effectively exercise power is decided by the independence itself to a large extent. Our corporation law should confirm the independent position of board of directors, give it the foundation of extensive power up and clear its position and duty. First, the lawmaking should give board of directors exclusive power. While emphasizing collective power of the whole board of directors, the lawmaking should allow article of association or board of directors to authorize one or several directors specially. Second, it is necessary to make its obligation and the responsibility explicit. Also, we should thin the obligation to any director, establish director to the third people's responsibility, increase the obligation to establish a director on relieve. Leading into business judgment rule as standard is to define actually what situation makes the decision of the director's behavior, why it is asked, thus to encourage management operator bravely to reform. In the meantime of enhancing its compulsory, it is necessary to build up a mechanism for encouraging board directors. Along with the power extended, making board of directors'internal structure excellent is wanted by perfecting the system of independent board director and setting up specialized committees. Although independent board director's system is placed in to investigate continuously with perfect stage, its direct and equilibrium function have already been approved by many nations and business enterprise. Facing the internal person controlling the company, it is a necessity very much to draw lessons from them and perfect this system under the situation that we haven't found out more ideal system up to now. As an internal organization in board of directors, which committee should be established and which rights can be exercised are decided freely by corporation. On this foundation, the article puts forward the kit system for an arrangement. Above of all, the guarantee mechanism of shareholder rights is important. Just as a necessarily powerful corporation organization, the shareholders' meeting still possesses the power to elect the members of board of directors and other legal rights. The shareholder is the proprietor of corporation, whose legal rights must give the dual guarantee of entity and procedure. This kind of procedure rules and regulations mainly embody in when his right is invaded, the shareholder can make an appeal to direct litigation or representative litigation. Secondly, the supervisor is reasonable to carry on. Weakening the control to corporation from government's administration is to keep the independence of board of supervisors; On the other hand, providing the qualifications to the supervisor and enhancing the obligation and the responsibility are wanted. Then, the manager needs to cooperate with board of directors effectively. With the premise of promising itself independent, board of directors can authorize a manager an implement to manage behavior within the scope of the engagement under supervision from independent board director and professional committee. According to the scale and management, each corporation can decide freely whether member of the board of director can sever in the same time as manager. Finally, according to its political in the profit corporation, the party committee should be provided definitely only for a political organization which can't interfere directly the daily decision and administration business of corporation. Only by these measures, we can insure board of directors to manage well.