Internal Control Of The Legal Countermeasures

Company's development has gone through from the central doctrine of shareholder meeting to the central doctrine of board of directors, again go to the development course of the central doctrine of manager layer. Because of the extremely scatter of investment , the expansion of enterprise scale, the asymmetrical information and the high specialization of company's operation , internal person control is unavoidable. And in our country, the arising of internal person control has special historical background and realistic reason, as the dominate state-owned stock etc.. The disadvantages of Internal person control outweigh the advantages, though it may raise the enterprise efficiency on a degree, but its out of control brings more huge negative influence. It may carry out the rule system from the two aspects of company's internal administration and external administration as to the problem of internal person control, and the specific methods are economic means, administrative means, legal means and morals means. The discussion of this paper is to solve the internal person control problem from company's internal administration angle by the use of the utilization legal means. The text words are more than forty thousands, including six parts:The 1st part is the foreword, mainly telling the background of the research and the defect and harm caused by the out-of-control of the internal person control in domestic and international.The 2nd part is "the analysis of internal person control phenomenon ", including its connotation, performance, occur, influence and legal rule system pattern. It was in 1990s that the concept of internal person control was put forward and led into our country, its harm mainly shows for the infringement of owner right and the reduction of enterprise operation efficiency which due to the lengthy chain of agency, the manpower capital distortion repayment caused by contradiction of the surplus control power and surplus asking-for right, the " route relying-on " in system changes and the vacancy of the state-owned company's property right, and its negative influences are the expansion of agency cost, the waste of capital resource and increase financing cost etc..The 3rd part is about " the reasonable reinforcement of shareholder rights and therestricts of the internal force ". The shareholder right is the effective restricting means of the internal person force. Shareholder rights refer to the knowledge about the checking-up right of account book, the checking-up right of financial accounting report and inquiry right. It should be perfected in the fields of substantive examination, administration of justice and the person inspection, in order to put the illegitimate behaviors of internal person into an embarrassing position. The optimization of shareholder vote system aims at making shareholder meeting resolution and company's behavior embody the intentions of the investors. It is necessary to restrict partially the special votes, establish and improve the vote agency of the exercise system with written form , introduce the accumulated system of right to vote and cultivation to entrust ballot agreement and vote trust mechanism. To restrain the behavior of internal person for speculating and guarantee the little shareholder democratic right, it is necessary to revise the right in the "company law" of our country that a few shareholder ask to call temporary shareholder meeting together , and gives its motion right at the same time gives. Shareholder lawsuit is the guarantee by which other shareholder rights will be realized, and it is the most powerful judicial measure of the confrontation against internal person, our country should perfect shareholder direct lawsuit system , and establishes shareholder derivative lawsuit system..The 4th part is " optimize director system , alleviate the negative influence of internal person control". The incompleteness of the Company's contract and the defect of the traditional legal person administers structural existence facilitate the birth of the independent director system, in recent years the listed company of our country also leads into this system step by step, with reinforcement for board of directors, especially for the internal person control . "company law" should stipulate independent director system clearly , and deploys from independence decision criteria , power , responsibility undertakes , encouragement mechanism and so on. The member of board of directors is engaged in company's management general affairs, and becomes " internal person" , or exercise the important duties such as supervisor right , restrict internal person. Therefore it is of great importance to normalize its duty and responsibility strictly, for prevention that director abuses power and neglects in duty and rectification of the behavior of internal person control. Responsibility and duty of director include noticing duty and faithful duty , the responsibility for company andthe responsibility for the third person. " the company law" of our country should pretty to the legislation of the developed countries for its rough stipulation, and establishment of perfect duty and responsibility.The 5th part is " perfect supervisor system and strengthen the supervisor and restriction of internal person". Supervision board is for the realization of the company's minute right system and for the strengthening of the power supervisor. It is urgent and inevitable practice to ensure its efficient operation and solve internal person control problem. From the aspects of forming mechanism ( the member of supervision board forms , people , hold a post qualification etc. ) , authority mechanism (inspection right, business supervisor right and right to know about, temporary shareholder meeting calls right, company's right of representation, personnel supervisor right, business restraint right and funds guarantee right etc. together ), and the encouragement restraining mechanism ( reputation encouragement, pay encouragement and the duty of supervisor and responsibility etc.) ,the all-around system design should be carried out to avoid the occurrence of internal person controls problem.The 6th part is concluding remarks, pointing out the importance, difficulty, the philosophy basis and the complexity of the administration for internal person control problem, and initiating to the study circle that research should be carried out in-depth, and promote the company's administration level of our country.There are some innovations in this paper, firstly, it is decades of years to put forward the concept of internal person control. And it is more rarely to make systematic research in the fields of the legal countermeasure of internal person control problem. The author, from the aspects of shareholder right, director system, supervisor system and the controlling of internal person control, carries out a complete analysis and research for the problem. Additionally, as to the specific measure of restricting internal person, the author referred to the past source material, practiced in theme of this paper, put forward a series of new and relatively practical viewpoints, and hope the professors could design some comments.