The Research Of Litigious Right Of The Board Of Supervisors

The board of supervisors as an exotic, have not for what people value, legislation in the performance for the law provisions too simple, practical is not strong, practice on the authority of the empty would cause generalization, be for everyone "vase" Investigate its reason, the board of supervisors of the lack of substantial power of supervision, even if that company management problems, is "to develop the intentional, no turning back". From the world scale, set up a board of supervisors country, basically all right to the board of supervisors, it should be said that it is not an accident, on the one hand, the world common reaction of the board of supervisors shall strengthen the authority of the trend, on the other hand also shows that the board of supervisors of constraints right of directors and senior management personnel play a positive role. 2005 "law of corporation" the modification of the board of supervisors to litigation, should say is a considerable progress, however, from a practical utility to see, the above problems are not changed. This phenomenon caused by many reasons:first, the board of supervisors lack of more specific provisions of the right, such as do not represent the company the prosecution that the actual utility to sell at a discount greatly; Second, the lack of viable the responsibility of the board of supervisors mechanism, no clear responsibility divided; Finally, no complete incentive and restraint mechanism, which enables the board of supervisors in the exercise of the right of no responsibility and not the system guarantee, the more no real benefit drive, that litigation and not be restricted the board of supervisors directors and senior management personnel’s powerful tools. In addition, in the face of the board of supervisors in litigation case, the contradiction of the applicable law for immediately appear, in legislative explanation and judicial interpretation has not been clearly under, because of the lack of uniform standard, each district court each for matrix, we imagine not hard right to the board of supervisors how realistic significance. However, the current situation of the cause and not the board of supervisors litigation caused by faulty itself, but on the existing legal reference omissions. Any legal system reform and repair all should not be an individual, cannot ignore the law system of coordination and reality domestic background, the board of supervisors is not only a simple also determines the laws, but from the rights to the system to safeguard measures of a set of laws and regulations. The author is in this context, to face the dilemma of the board of supervisors in litigation, and seek the solution of the path.This paper, besides the conclusion, is divided into four parts:The first chapter of the board of commissioners is an overview of litigation. In this part, based on the board of supervisors for defining the litigation, including of the board of commissioners this internal supervision of the main body of the definition and the definition of the right exercise content. Second, and analyzed the necessity of the right to the board of supervisors. Any law behind, all has the deep realistic background, giving the board of supervisors litigation is also based on the needs of the reality, and not the lawmakers subjective judgement. In this view, the confusion of the board of supervisors shall produce first is the urgent requirement of the development of the market economy. Under the planned economy system, the government regulation occupy leading role, state-owned enterprises implement the factory director manager responsibility system, internal company does not exist oversight agency. "Law of corporation" issued later, a state-owned enterprise is transformed into the company, the original "old three committee become "new three committee", including the board of supervisors. But in the original ideas under the control of, the board of supervisors is basically a a guise of the accessories, give the right of the board of supervisors is not too big necessary. With the establishment of the market economy, such management system has been difficult to adapt to the needs of the market, strengthen the functions and powers of the board of supervisors of the growing calls, encourage the board of supervisors litigation to become a kind of urgent need. And, the board of supervisors as internal supervision agencies, has incomparable advantage, given its litigation, can make the supervision role play a more effective. Moreover, the board of supervisors system is supposed to foreign legislation experience for reference, gave the board of supervisors litigation is also in order to better connect with foreign countries. In addition, the author analyzes the right of the theoretical foundation of the existence of the board of supervisors. The author thinks that, given the board of supervisors litigation is to strengthen the function of the board of supervisors performance, its theoretical basis should be the agency cost theory and the theory of the separation of powers.The second chapter basically analysis of our company shall the plight of litigation. The company law, the provisions of the right of the board of commissioners extremely simple, mainly is the article 152, that reality is difficult to apply. The board of supervisors of the dilemma of the right exercise mainly displays in several aspects: how to determine the plaintiff; The company in the awkward position of litigation; Whether there is controversy prior procedures; Litigation cost for the lack of specific provisions; Lack of exercise of the right of incentive mechanism, The lack of effective accountability mechanism, and in the light of the existing problems, the author puts forward his opinion, to improve the board of supervisors shall exercise the right of law or regulation.The third part is foreign to the legislation of. There are mainly in the world two typical internal supervision mode, the German model, and the Japanese model. Different mode, the provisions of the right to the board of supervisors is different, the most important feature is the domestic present situation with their own adaptation. The author is in after analysis, and points out that the two points need reference place: establish the board of supervisors, on behalf of the company the prosecution and establish supervisors litigation alone.The last chapter basically is the supervisors of the company of our country right legal regulations to improve opinion, this also is this paper mainly the innovation points. Combined with the second part of the first mentioned trouble, puts forward the board of supervisors shall exercise the right program structure. Secondly, in view of the reality of the board of supervisors shall exercise the right of idle at phenomenon, also stipulates corresponding measures, such as the board of supervisors shall be investigated for responsibility and individual supervisors to litigation. Again, for the board of supervisors shall exercise the right of problems, from two aspects discusses, on the one hand, is set up incentive mechanism, and encourage exercise of litigation; On the other hand is the restraint mechanisms to prevent the misuse of the litigation. Finally, puts forward to strengthen the independence of the board of supervisors, and how to prevent the board of supervisors shall exercise the right of appeared in the process of conspiring to give an opinion.