破產(chǎn)重整中股東權(quán)益保護(hù)研究
發(fā)布時(shí)間：2019-07-09 15:53
【摘要】：2007年施行的《中華人民共和國(guó)企業(yè)破產(chǎn)法》(以下簡(jiǎn)稱《破產(chǎn)法》)對(duì)公司的破產(chǎn)重整程序作出了相關(guān)規(guī)定,其中第六章和第七章的規(guī)定大多體現(xiàn)了對(duì)債權(quán)人權(quán)益的保障,對(duì)于重整公司股東(以下簡(jiǎn)稱“股東”)在重整中的權(quán)益盡管在《破產(chǎn)法》中亦有所提及,但相關(guān)規(guī)定大多過(guò)于原則性,具體保護(hù)機(jī)制和規(guī)則均未作出明確規(guī)定。我國(guó)《破產(chǎn)法》作為指導(dǎo)重整的準(zhǔn)則,股東在重整中法律地位的不明確和權(quán)益保護(hù)的缺乏,極易造成重整實(shí)務(wù)中對(duì)股東權(quán)益保護(hù)的忽視。對(duì)于公司重整來(lái)講,最核心、最重要的環(huán)節(jié)就是制定一個(gè)合理可行的重整計(jì)劃,因?yàn)橐粋�(gè)好的重整計(jì)劃可能挽救一個(gè)即將瓦解的公司,使它起死回生,所以如果重整計(jì)劃制定得當(dāng),后續(xù)的執(zhí)行工作就會(huì)簡(jiǎn)單很多。股東在自重整程序的啟動(dòng)至重整計(jì)劃的制定這一過(guò)程中應(yīng)當(dāng)享有的權(quán)利主要涉及重整申請(qǐng)權(quán)、知情權(quán)、參與權(quán)和表決權(quán),切實(shí)保障股東這幾項(xiàng)權(quán)利的行使,則可實(shí)現(xiàn)對(duì)股東權(quán)益更好地保障。因此,本文從股東應(yīng)享有的這幾項(xiàng)權(quán)利出發(fā),通過(guò)結(jié)合《破產(chǎn)法》的相關(guān)規(guī)定分析股東在行使權(quán)利時(shí)存在的諸如股東申請(qǐng)重整的限制條件過(guò)多、股東知悉重整進(jìn)程的信息匱乏、股東不能充分參與到重整程序中以及股東對(duì)重整計(jì)劃草案的表決機(jī)制不具體等問(wèn)題,并進(jìn)一步結(jié)合我國(guó)重整的實(shí)際情況、借鑒其他國(guó)家和地區(qū)的立法例提出了適當(dāng)放寬股東申請(qǐng)重整的限制條件、明確股東了解重整進(jìn)程的渠道、通過(guò)賦予股東制定重整計(jì)劃草案的資格并設(shè)立股東委員會(huì)等方式真正實(shí)現(xiàn)股東的重整參與權(quán)、出資人組對(duì)重整計(jì)劃草案的表決應(yīng)考慮采用混合型表決規(guī)則等完善建議。
[Abstract]:The Enterprise bankruptcy Law of the people's Republic of China (hereinafter referred to as the bankruptcy Law), which came into effect in 2007, has made relevant provisions on the bankruptcy reorganization procedure of the company, in which the provisions of chapters VI and VII mostly reflect the protection of the rights and interests of creditors, and the rights and interests of shareholders of the reorganization company (hereinafter referred to as "shareholders") in the reorganization are also mentioned in the bankruptcy Law, but most of the relevant provisions are too principled. Specific protection mechanisms and rules are not clearly defined. As the criterion to guide the reorganization, the unclear legal status and the lack of protection of rights and interests of shareholders in the reorganization of our country can easily lead to the neglect of the protection of shareholders' rights and interests in the practice of reorganization. For the reorganization of the company, the most important link is to make a reasonable and feasible reorganization plan, because a good reorganization plan may save a company that is about to collapse and bring it back to life, so if the reorganization plan is properly formulated, the follow-up implementation will be much easier. The rights that shareholders should enjoy in the process of starting the self-reorganization procedure and formulating the reorganization plan mainly involve the right to apply for reorganization, the right to know, the right to participate and the right to vote, and to ensure the exercise of these rights of shareholders, which can better protect the rights and interests of shareholders. Therefore, starting from these rights that shareholders should enjoy, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information about shareholders' knowledge of the reorganization process, inability of shareholders to participate fully in the reorganization process and the lack of specific voting mechanism of shareholders on the draft reorganization plan, and further combining with the actual situation of the reorganization in our country, and by combining with the relevant provisions of the bankruptcy Law, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information on the reorganization process, Drawing lessons from the legislative examples of other countries and regions, this paper puts forward some suggestions on how to relax the restrictions on shareholders' application for reorganization, clarify the channels for shareholders to understand the process of reorganization, and truly realize the right of shareholders to participate in reorganization by giving shareholders the qualification to formulate the draft reorganization plan and set up shareholders' committees. The investors' group should consider adopting mixed voting rules and other perfect suggestions for the voting of the draft reorganization plan.
【學(xué)位授予單位】：中央民族大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.92
本文編號(hào)：2512260
[Abstract]:The Enterprise bankruptcy Law of the people's Republic of China (hereinafter referred to as the bankruptcy Law), which came into effect in 2007, has made relevant provisions on the bankruptcy reorganization procedure of the company, in which the provisions of chapters VI and VII mostly reflect the protection of the rights and interests of creditors, and the rights and interests of shareholders of the reorganization company (hereinafter referred to as "shareholders") in the reorganization are also mentioned in the bankruptcy Law, but most of the relevant provisions are too principled. Specific protection mechanisms and rules are not clearly defined. As the criterion to guide the reorganization, the unclear legal status and the lack of protection of rights and interests of shareholders in the reorganization of our country can easily lead to the neglect of the protection of shareholders' rights and interests in the practice of reorganization. For the reorganization of the company, the most important link is to make a reasonable and feasible reorganization plan, because a good reorganization plan may save a company that is about to collapse and bring it back to life, so if the reorganization plan is properly formulated, the follow-up implementation will be much easier. The rights that shareholders should enjoy in the process of starting the self-reorganization procedure and formulating the reorganization plan mainly involve the right to apply for reorganization, the right to know, the right to participate and the right to vote, and to ensure the exercise of these rights of shareholders, which can better protect the rights and interests of shareholders. Therefore, starting from these rights that shareholders should enjoy, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information about shareholders' knowledge of the reorganization process, inability of shareholders to participate fully in the reorganization process and the lack of specific voting mechanism of shareholders on the draft reorganization plan, and further combining with the actual situation of the reorganization in our country, and by combining with the relevant provisions of the bankruptcy Law, this paper analyzes the problems existing in the exercise of shareholders' rights, such as excessive restrictions on shareholders' application for reorganization, lack of information on the reorganization process, Drawing lessons from the legislative examples of other countries and regions, this paper puts forward some suggestions on how to relax the restrictions on shareholders' application for reorganization, clarify the channels for shareholders to understand the process of reorganization, and truly realize the right of shareholders to participate in reorganization by giving shareholders the qualification to formulate the draft reorganization plan and set up shareholders' committees. The investors' group should consider adopting mixed voting rules and other perfect suggestions for the voting of the draft reorganization plan.
【學(xué)位授予單位】：中央民族大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.92
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 丁林;;論公司破產(chǎn)重整中股東權(quán)利的配置[J];長(zhǎng)春師范學(xué)院學(xué)報(bào);2012年10期
相關(guān)博士學(xué)位論文 前1條
1 方俊;上市公司破產(chǎn)重整的利益平衡論[D];華東政法大學(xué);2011年
，本文編號(hào)：2512260
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