Research On The Power Allocation Of Shareholdes’ Meeting And The Board Of Directors

In 1932,Bede and Means,in the book "The Modern Corporation and Private Property," mentioned that ownership is separated from business ownership under the company system.Thus,the theory of corporate governance how to coordinate the relationship between them has produced.The theory of corporate governance has always been the focus of the research of corporate law in various countries,and its core problem lies in the framework of the mechanism of checks and balances among the many stakeholders of the company.The shareholders’ meeting and the board of directors as the company’s main legal authority plays an important role in corporate governance.The mode of power allocation reflects the ownership of control of the company,which has always been the focus of disputes between theoretical and practical circles,and the understanding of the boundary between the two countries is different.The legislation and articles of association can not be divided into full power,and the conflict between the legislation and the constitution about the allocation of powers and powers has also occurred,thus resulting in various forms of power struggle.The existing problems in our country mainly include:1.If the authority of the board of directors conforms to the provisions of the company law and articles of association,the board of shareholders shall make a resolution within the terms of reference of the board of directors,and whether theresolution of the shareholders’ meeting is superior to the resolution of the board of directors.2.Are the provisions in the company law of the shareholders’ meeting and board of directors mandatory? Whether reasonable? Can the board of shareholders limit its own functions and powers to the board of directors through its articles of association?How to explain the bottom clause: "Other functions and powers stipulated in the articles of association" ?3.Whose authority does the law and the articles of association do not stipulate?Aiming at these problems,the author will combine the current legislative status quo at home and abroad,combined with domestic and foreign relevant theory,to seek the shareholders’ committee and the board of directors authority allocation ought to mode and provide guidance for its operation.In the first chapter,firstly,it introduces the cases of power struggle between shareholders and board of directors in practice.These cases can be divided into three questions: 1.How effective the board of directors will be in matters within the board of directors.2.Whether the legal authority of the board of shareholders will be granted to the board of directors;3.Ownership of blank authority.The judgment tendency of different courts reflects different interpretations of the relevant provisions of the company law.Secondly,it analyzes the relevant legislation of the board of directors.As can be seen from the legislative shareholders in the company’s management mainly plays the role of policy makers,with major matters of the decision,the board of directors is responsible for the specific solution design and proposal,mainly the implementation of the shareholders’ committee decision.Finally,it points out that the current legislation is too principled and the question of the bottom clause.In the second chapter,it analyzes the disputes behind the resolution of the resolution.Should we follow the Centralism of AGM and the Centrism of the Board?Through the analysis of agency theory and contract theory,and the Centralism of AGM and the Centrism of the Board,and the legislation of different countries,it is concluded that the corporate governance structure is not to establish amanagement as the center,or ownership as the center.The Centralism of AGM and the Centrism of the Board are a kind of orientation of power allocation to the company,the description of the visualization,reflects the relationship between radiation around a center,and can not accurately reflect the true meaning.We should pay more attention to the monitoring and balance of power in corporate governance,seek balance in the constant adjustment,and realize the scientificity of the company’s decision-making.In the third chapter,it analyzes the disputes behind the authorization of legal authority.Is the power of the company law listed in the company law compulsory or arbitrary? According to the current legislative language,the functions of the company law listed in our country are mandatory rules,and the bottom clause is a discretionary rule.But if you think about the type of company,it’s a little biased,because some of the things that are listed are more appropriate for the board of shareholders or the board of directors.Secondly,it analyzes the Eisenberg trichotomy to distinguish the company type.Such classification method seems to solve the problem,but there are some defects in this classification method.Finally combining the Eisenberg trichotomy,mandatory rules shall be limited to the scope of shrinkage on the right,the scope includes structural rules and faith,mandatory rules can be restricted by the opportunism,incomplete information and externality.At the same time,the mandatory rules do not naturally take precedence over private arrangement,the scope of mandatory rules will be formulated in appropriate range,it is concluded that the mandatory rules and arbitrary rules of specific cooperation mode.In the fourth chapter,the exclusive authority of shareholders and board of directors is analyzed.Shareholders enjoy infrastructure decision-making items exclusive authority,and need to be regulated by mandatory rules,including two kinds:One kind is involved in the company’s major changes: the modification of the articles of association,as well as merger,division,dissolution of the company;One is the change that involves the management relations of the company: the appointment and removal of directors,determination of remuneration of directors.The board of directors shall enjoy the exclusive authority includes two kinds: One kind is a widerange of management right,but if the measures taken by the board of directors of the importance degree of seriously affect the company and the interests of shareholders,the shareholders’ committee shall enjoy the right of were determined.One is the right to put forward and the right to monitor.Concerning the changes of company’s organizational structure,such as merger,acquisition and business transfer,the decision plan should be put forward by the board of directors.For blank authority,if it can belong to operational matters,it belongs to the board of directors.If it is a decision matter that can affect the company’s infrastructure,it belongs to the board of shareholders.In the end of this paper,the author summarizes the solution of the overpower resolution,which is divided into three types.The first is to violate laws and regulations on the distribution of shareholders’ meeting and board functions;The second is the violation of the provisions of the articles of association concerning the distribution of functions and powers;Thirdly,there are no provisions in the law and articles of association,and the shareholders’ meeting and the board of directors make conflicting resolutions.At the same time,in view of the current law of authority has played a very good demonstration effect,combined with the national legislation and judicial practice,the research achievements of scholars,the author put forward the small changes to the amendments.