The Research On The Allocation Of Powers Among Shareholders Meeting And Board Of Directors

Under the background that the enterprise system in our country emphasizes the separation of ownership and management,how to allocate the power of the shareholders meeting and the board of directors has become a persistent problem in the company law.The shareholders meeting and the board of directors are the key institutions for corporate governance.At present,the regulations on the distribution of power between the shareholders meeting and the board of directors are not unified among all the countries,There are two main points: shareholder primacy and director primacy.However,both views have some problems in theory and practice.The author thinks that we should jump out of two preconceived views of shareholder primacy and director primacy,starting from the respective advantages of the shareholders meeting and the board of directors in making decisions,to find the best allocation of corporate power model.From "superiorism" to "equalism",to eliminate the problem of corporate governance arising from the excessive power of one party.This paper is consisted of the four parts.In the first part,it mainly introduces the basic theory of the power allocation of shareholders meeting and board of directors.The paper explains the three major principles on which the power of shareholders meeting and the board of directors are based that the separation of powers principle,efficiency principle and autonomy principle.Simultaneously,with the separation of ownership and management theory,the nexus-of-contracts theory and the company stakeholder theory as the support,the research on the allocation of power between the shareholders meeting and the board of directors obtains the corresponding theoretical basis.The second part is a brief introduction of some typical countries` domain of shareholders meeting and board of directors power allocation provisions,it mainly focus on reference to the relevant provisions of the actual situation in our country.The third part focuses on the allocation of power of shareholders meeting and the board of directors provisions in China's "Company Law".Analyzing and summing up the problems in our legislation and practice,the limits of power between the shareholders meeting and the board of directors are not clear;shareholders meeting have too much power;the obligations and related liability mechanisms of board are incomplete;the autonomy boundary of the constitution of the company is unclear and the autonomy function of the constitution can not be fully exerted.The fourth part is for the above problems,combined withrelevant experience of countries outside the domain,according to China's specific circumstances,advancing the following four suggestions:first of all,enlightenment on the conceptual division standard of decision-making power in management science,the structural strategic decision-making authority to the shareholders meeting,the business strategy of decision-making power to the board of directors,define the division of power between the shareholders meeting and board of directors standards.It also redistributes the power of the shareholders meeting and the board of directors in our country to change the legislative tendency of the shareholders.Second,through the introduction of fiduciary duty of controlling shareholder,improving exclusion of shareholders' voting right system,correcting legislative language and legislative expression,regulating the exercise of the controlling shareholder's rights and strengthen the independence of the board of directors.Third,to improve the director's fiduciary duty,attempt to introduce "Business Judgment Rules",improve the system of independent directors in our country so that it can really play a supervisory role.Finally,to distinguish between different types of companies,optimize the constitution of the company charter,clear the boundaries of the mandatory norms and the articles of association,to give full play to the autonomy function of the articles of association,rationally configure the power of shareholders meeting and board of directors.