公司董事的身份的職業(yè)化：Director of the company's professional identity
05-07, 2014
Introduction引言
我們用簡(jiǎn)短的文字介紹現(xiàn)在學(xué)界關(guān)于董事與公司關(guān)系的四種主要學(xué)說，這四種學(xué)說從不同方面研究了董事與公司的關(guān)系，對(duì)于進(jìn)一步研究董事與公司的關(guān)系有重要意義。但是這四種學(xué)說在不同程度上暴露出了不足。代理人關(guān)系說，說明了董事對(duì)外代表公司進(jìn)行法律行為，保護(hù)與公司為法律活動(dòng)第三人的權(quán)利，實(shí)現(xiàn)交易安全和效率，穩(wěn)定了經(jīng)濟(jì)秩序。這種學(xué)說是從公司的外部關(guān)系認(rèn)識(shí)董事與公司的關(guān)系，不能正確解釋，在公司內(nèi)部，董事與公司的關(guān)系。
We are scholars on the relationship between the directors and the company 's four main doctrine , the doctrine of the four studied the relationship between the directors and the company from different aspects , for further study of the relationship between the directors and the company is important to use a short text description . But these four doctrines exposed to varying degrees, inadequate . Agent relationship that illustrates the directors of foreign legal acts on behalf of the company to protect the rights of legal activities with the company as a third party to achieve transaction security and efficiency , and stability of the economic order. This doctrine is from the understanding of the relationship between the company's director of external relations with the company , can not be interpreted properly within the company , the directors and the company's relationship .
而且，就這種學(xué)說的取向觀而言，董事法律地位如果直接使用民法關(guān)于代理人的法律規(guī)范，就有一種沖突和觀念修正問題。因?yàn)樵诂F(xiàn)代社會(huì)中，在公司經(jīng)營(yíng)戰(zhàn)略、經(jīng)營(yíng)決策方面董事已占有十分重要的地位。董事構(gòu)成董事會(huì)，雖依公司意思對(duì)公司進(jìn)行經(jīng)營(yíng)管理，但為達(dá)到有效管理公司財(cái)產(chǎn)的目的，享有相當(dāng)程度的自由裁量權(quán)，須依自己意思，有自己的決定權(quán)，因而其與公司代理人的地位截然不同 。
Moreover , the orientation of view this doctrine , the directors of the legal status of civil law if used directly on the agent's legal norms , there is a conflict and ideas to fix the problem . Because in modern society, in the company's business strategy , operating decisions Directors has occupied a very important position . Directors constituting the Board , although the meaning of the company by company management, but in order to achieve the purpose of effective management of the company's property enjoys a considerable degree of discretion , shall in accordance with its own meaning , its own discretion , so its agents with the company position different. Trustee relationship that completely directors and the company as two separate legal entity , while ignoring the director is an important component of the company's officers , directors of the management company 's board of directors ultimately constrained by the activities of the company's shareholders . Legal action on behalf of the Board of Directors based on the company 's internal and external made ??, although their own independent meaning , but the meaning of the independent directors of the Company are summarized authorization as a precondition. " Trust in the system as a system of common law origin , requiring trustees to manage and dispose of property at the time , rather than independently on behalf of their own clients' legal relationship with a third person form , its management of the trust property by the Trust Deed , the law is strictly prohibited engaged in the venture capital business. directors in managing the company's affairs are conducted in the name of the company , his pursuit of profit maximization as the goal, inevitably engage in high -risk investment affairs and management activities , obviously, can not be said that the trust relationship explain the status of the directors . " appointment relations , said the relationship between the agent said to overcome the lack of internal relations director with the company made ??some explanation. This doctrine is focused on internal relations director with the company to explain , but ignored the directors to represent the company in foreign legal action. Because the concept of civil and commercial law now appoint an internal relationship between the man and the appointment of a trustee , does not have the characteristics of external relations , in particular the chairman and directors of both companies have to deal with significant internal affairs , but also on behalf of the company ( name of a company ) Foreign legal behavior. Therefore, the relationship between the directors and the appointment of the company's fall , said contrary to reality . Dual relationships that are the basis of the previous three theories evolved , three theories on the front to make a correction , so the director of external relations for the company to do a certain amount of interpretation. But the biggest flaw of this theory is that the relationship between the directors and the company 's lead complicated, but also for how internal and external affairs branch of the District lack of clear standards. While this doctrine is not conducive to the directors of foreign legal acts on behalf of the company , and the company is not conducive to protecting the legal interests of the activities of third parties .#p#分頁(yè)標(biāo)題#e#
而且，就這種學(xué)說的取向觀而言，董事法律地位如果直接使用民法關(guān)于代理人的法律規(guī)范，就有一種沖突和觀念修正問題。因?yàn)樵诂F(xiàn)代社會(huì)中，在公司經(jīng)營(yíng)戰(zhàn)略、經(jīng)營(yíng)決策方面董事已占有十分重要的地位。董事構(gòu)成董事會(huì)，雖依公司意思對(duì)公司進(jìn)行經(jīng)營(yíng)管理，但為達(dá)到有效管理公司財(cái)產(chǎn)的目的，享有相當(dāng)程度的自由裁量權(quán)，須依自己意思，有自己的決定權(quán)，因而其與公司代理人的地位截然不同 。
Moreover , the orientation of view this doctrine , the directors of the legal status of civil law if used directly on the agent's legal norms , there is a conflict and ideas to fix the problem . Because in modern society, in the company's business strategy , operating decisions Directors has occupied a very important position . Directors constituting the Board , although the meaning of the company by company management, but in order to achieve the purpose of effective management of the company's property enjoys a considerable degree of discretion , shall in accordance with its own meaning , its own discretion , so its agents with the company position different. Trustee relationship that completely directors and the company as two separate legal entity , while ignoring the director is an important component of the company's officers , directors of the management company 's board of directors ultimately constrained by the activities of the company's shareholders . Legal action on behalf of the Board of Directors based on the company 's internal and external made ??, although their own independent meaning , but the meaning of the independent directors of the Company are summarized authorization as a precondition. " Trust in the system as a system of common law origin , requiring trustees to manage and dispose of property at the time , rather than independently on behalf of their own clients' legal relationship with a third person form , its management of the trust property by the Trust Deed , the law is strictly prohibited engaged in the venture capital business. directors in managing the company's affairs are conducted in the name of the company , his pursuit of profit maximization as the goal, inevitably engage in high -risk investment affairs and management activities , obviously, can not be said that the trust relationship explain the status of the directors . " appointment relations , said the relationship between the agent said to overcome the lack of internal relations director with the company made ??some explanation. This doctrine is focused on internal relations director with the company to explain , but ignored the directors to represent the company in foreign legal action. Because the concept of civil and commercial law now appoint an internal relationship between the man and the appointment of a trustee , does not have the characteristics of external relations , in particular the chairman and directors of both companies have to deal with significant internal affairs , but also on behalf of the company ( name of a company ) Foreign legal behavior. Therefore, the relationship between the directors and the appointment of the company's fall , said contrary to reality . Dual relationships that are the basis of the previous three theories evolved , three theories on the front to make a correction , so the director of external relations for the company to do a certain amount of interpretation. But the biggest flaw of this theory is that the relationship between the directors and the company 's lead complicated, but also for how internal and external affairs branch of the District lack of clear standards. While this doctrine is not conducive to the directors of foreign legal acts on behalf of the company , and the company is not conducive to protecting the legal interests of the activities of third parties .#p#分頁(yè)標(biāo)題#e#
From the front of the Directors and the Company's relationship doctrine ( hereinafter as the first four doctrine ) a brief description of their evaluation and analysis, we see the first four doctrines defects. However, we believe there are still deficiencies before the doctrine of the following four aspects . First, the first four doctrine is a trust relationship between the principal and the agent based on the civil law and the establishment of a strong co- sexual . This legal relationship based on personal trust relationship arising is not consistent with the modern development of the company . With the development of market economy , the company's management increasingly complex and specialized, professional management company needs to have knowledge and expertise of the staff , but most of the company's shareholders lack of such knowledge and skills , but also do not want to or can not engaged in the company's management . In order to achieve effective management of the company to adapt to the increasingly fierce competition for survival outside the company's shareholders began hiring personnel management company that specialized knowledge and expertise in personnel other than shareholders as the company's managers , engaged in business management company's activities . So those with co- legal relations in nature, such as the relationship between trust and fiduciary relationship is no longer appropriate relationship with the company 's directors . Second, the theory will be implemented before the four directors of the management company's activities seen as the outcome of the work delivered . In fact, we all understand that the management company is the director of a long process , is a director of the use of their professional knowledge and expertise in the course of the company's role in a variety of human and material resources and other means of production , and ultimately restrict the company 's shareholders and under the supervision of the management company , the shareholders invested in the company to achieve the fundamental objectives. But the first four doctrine , whether it is the appointment of an agent relationship or relationships , said the director of the management company to ignore procedural . Third, the first four theories can not explain such a legal relationship , the legal relationship that the legal relationship between the workers and the company 's directors and directors as company managers, and between companies . Now the current director of the Act defines the system of workers that all workers the company through the democratic election of representatives to participate in the democratic process management participation mechanisms . Small size of the company is now the Companies Act , the small number of companies set up an executive director , the director may act as manager of the company . The nature of the legal relationship with the company manager 's aside , the relationship between the directors and the company 's employees , the employees and directors of the company where the presence of labor law relationship, which is indisputable. But for the first four mentioned theory can not fully make the correct interpretation of the legal relationship . Fourth, the first four doctrine does not meet the reality of now the company's development . Now the new Companies Act to reduce the company's registered capital , increasing the number of small and medium sized companies. The company's management and the company's business decisions increasingly complex and specialized , and shareholders of these companies due to lack of management of the company's expertise and specialized skills, unwilling or unable to engage the company's management activities. Plus , a large company in order to cope with an increasingly competitive domestic and foreign companies , the shareholders of the company will start looking for personnel management company specializing in knowledge and expertise in personnel outside the company 's shareholders , to the management company . In the eyes of the general director of the workers , but also a mental, because they think the directors are managers, paid a labor management company in the process . The Directors also consider themselves part of the company's relationship with labor-law relationships . Therefore, the status of the directors now changed, directors increasingly professional.#p#分頁(yè)標(biāo)題#e#
In the course of the relationship between the directors and the company , the first four are inherited doctrine development , but this development is inherited in civil and commercial relations wandering , unable to adapt to the reality of the company's development now . Assuming the legal relationship , between the directors and the company 's labor relations law , the doctrine of the first four problems exposed intact can be solved , and this assumption is also adapted to the company's development is now a reality . In the previous analysis, we found that the relationship between the directors and the company increasingly inclined to labor law relationships. But the relationship between the director and the company is not labor-law relationships , the directors are not workers on labor law , we also need to continue to demonstrate .
Relationship with the company is a director of labor relations law董事與公司的關(guān)系是一種勞動(dòng)法律關(guān)系
People in the production and life form of social relations, legal relations are in one of these relationships . Legal relationship , refers to a special relationship between the legal norms of social adjustment process of the formation of people's behavior , namely the legal rights and obligations . Productive labor is the basis for the existence and development of human society , in the process of productive labor in the form of labor relations people . The so-called labor relations refers to relationships occurring in people engaged in the labor process , labor in the production process, the people on the one hand a relationship with nature , on the other hand it will happen some connection between each other. Labor legal relations only people in the labor process in the form of a social relationship , so we can not simply think that labor law relations labor relations . Labor law labor relations is that people have to adjust the legal norms of a particular form of social relations in the labor process , a social relationship that employees and employers in achieving the formation of the labor process , this kind of social relations based on labor labor rights and obligations of the content. Generally believed that the relationship between labor law has the following characteristics: ( 1 ) a party worker labor law relationship is , the other is the employer ; ( 2 ) labor-law relationships are social relationships occur in achieving labor process ; ( 3 ) labor legal relationship is the personal relationship between social relationships with property and property relations attributes ; ( 4 ) the relationship between labor law and the equal subjection of social relations. Accordingly, the directors of the board of directors , management companies outlined in the company 's authorized , in the process , the directors and the company will occur relationships , and legal relationship is just a part of these relationships . We have to study the relationship between labor law and the company 's directors , it is necessary to identify those factors that have a meaningful labor law in these legal relations .#p#分頁(yè)標(biāo)題#e#
In the process of economic development , the company's governance model has also undergone profound changes that the company's governance model from the traditional " shareholder Centrism " to the modern " Board of centrism ." In this process , the directors of the company 's identity changed - Director increasingly professional. That is, the director is no longer a shareholder of the company will be hiring out of the company's shareholders , as the company's managers . Directors such changes occurred in the company's identity is a deep reason. Dr. Duan Wei made ??the following explanation for this : . " Now the company increasingly large scale , the growing number of shareholders , the hundreds and hundreds of thousands of millions of people , or even hundreds of millions of people in these shareholders, the vast most individual shareholders as minority shareholders , and their features are: on the one hand , the large number of geographically dispersed location , the proportion of shares held in the company is minimal, thus affecting the company also minimal, on the other hand , they do not have large modern company management necessary knowledge and skills, but also a lack of basic understanding of the company's business information which further determines the characteristics , operation and management of the company's lack of cohesion and the driving force behind the company and management skills necessary conditions for these shareholders , thus requiring these shareholders to participate in the company's management , not the reality , may not conform to the wishes of the majority of shareholders . Indeed , not only as a minority shareholder of a natural person is incapable or unwilling to participate in management , legal and other institutional shareholders of the company due to various the reason for participating in the daily operation and management of the company , said the offensive "Simply put , within the company, increasing the size of the expansion, the internal structure of an increasingly complex, increasingly specialized business decisions ; . outside the company , the accelerating pace of operations , competition for survival increasingly brutal operations of the increasingly far-reaching ; these decisions of the management of the company can not be handed over to the growing number of people and the lack of management to shareholders who must be run by corporate decision makers - the exercise director. For the above reasons , the company's governance model from the " Shareholders Centrism " to the " Board of centrism ", the company owned and operated the separation took place , candidates are becoming increasingly director of the management company with expertise from outside shareholders and hiring staff with specialized skills .
Scholars believe that the management of the company to promote a gradual shift from business owners to professional managers is the root cause of professional managers with talent management company . On the one hand , internal and external environment of the company's managers made ??high demands , on the other hand , a large number , the lack of company management to the shareholders not suitable candidates for the company's management responsibility, can only realistic option hiring management company has specialized expertise and skilled personnel placed in the core of the company's management and the directors of their own good moral character, outstanding expertise and other advantages it is decided that they are qualified for this role. At the same time , we should always remember: the nature of the company's shareholders is a tool for profit companies to invest in the establishment , so whatever is conducive to the establishment of the company's goal to achieve shareholder corporate governance model should be used by companies . In the modern development of the company , the changes in the internal environment and the external environment. In order to adapt to this change, the company had to consider the Company's shareholders from outside the staff hiring management company with expertise and specialized skilled personnel as the company 's operating management positions , namely director. With the company 's governance model to " Board of centrism ," more and more professional status of the directors , the directors became increasingly labor law on the possibility of workers increases.#p#分頁(yè)標(biāo)題#e#
In relation with the company 's directors is the employer在董事與公司的關(guān)系中公司是用人單位
Generally considered legal relationship is composed of three elements constitute , that legal relationship subject, the legal relationship between the object and the content of the legal relationship . And the law is a fundamental factor in the relationship between the subject of legal relations , determines the legal relationship between the object and the content of the legal relationship . Specifically in the labor relations law , labor law relationship is the main employer and the employee , determines the object and content of labor legal relations . Directors of the Board , on behalf of the Company and to authorize the company's other agencies and personnel , recruitment of workers , establishment of labor relations and labor law . And the company's board of directors decided to workers labor tasks , such as working hours and labor compensation and labor -related matters. It can be said on behalf of the Board of Directors of the Company to exercise their rights on labor law , but it also gave rise to misunderstanding : The Board is the employer ; while also producing a doubt : in the process of hiring a director who is the representative of the Company exercised its use of human rights ? Therefore, the directors discussed the relationship with the company is not labor-law relationships , it should be from the directors and the company's position in the legal relationship start to distinguish who is the employer , who 's the real exercise of human rights .
Employer , means having the ability to labor rights and labor capacity , recruitment of workers to provide working conditions and labor protection and to pay labor remuneration of social organization. Employers are now unique concept, with the corresponding foreign employers . Theoretically considered a legal entity to become the employer of labor law must have the right skills and employing personnel capacity , ie the employer as a labor user must be able to provide the necessary conditions for the realization of labor workers . We think that as the employer should have the following conditions : ( 1 ) preparation and recruitment of workers indicators , ( 2 ) the basic conditions of workers employed , ( 3 ) the total amount of wages and the minimum wage, ( 4 ) the statutory working hours and occupational safety and health standards, ( 5 ) social responsibility. Simply put, if a social organization is the employer of labor law , should meet certain conditions: First, labor productivity and labor have a place ; Second, there is the ability to undertake mandatory labor law obligations. Provisions for foreign employer is different , and some countries employers required to be " directly or indirectly to any person on behalf of the interests of employers ," such as " The National Labor Relations Act " and "American Fair Labor Standards Act ," some countries the employer is defined as " the private sector, legal and natural persons " , such as " labor Law of the Republic of Iraq ," the employer requirement in some countries , " regardless of natural and legal persons " such as " labor law in Rwanda ," the employer requirement in some countries administrative leaders and employers employing units , such as Norway. In contrast, many ILO conventions is more succinct : "employer" of the term , unless otherwise ambiguous alia, any public authorities , individuals, companies or associations ; many treatises and articles in the organization of the "employer " when further explained stressed that" employer " is not necessarily a business owner , therefore , whether in a market economy and a planned economy or partially socialized economy, the employer is the person hiring or firing workers . It should be said , the foreign and the ILO will not expand the scope of the employer , including any legal and natural persons . However, in the scope of our country the employer is limited. Under the current provisions of the existing "Labor Law" and " Labor Contract Law" , and now the employer include the following six organizations : enterprises, individual economic organizations , private non -enterprise units , government agencies , institutions and social organizations , in fact, employers now only two categories, namely legal and illegal human society organizations, labor laws do not think now is the natural employer of labor law.#p#分頁(yè)標(biāo)題#e#
In our country, in accordance with the provisions of the Companies Act now , the company is a corporate enterprise with independent legal property enjoys legal rights, with all its property liable for its debts . Accordingly, the company is the subject of civil legal relations in civil law to engage in certain activities, including the recruitment of workers to achieve its production and management tasks. The company is the employer on labor law , labor law rights on the labor law obligations , with the recruitment of workers , the use of qualified labor . The company has production and fixed place , it can provide the labor necessary for the realization of production and production conditions, protection of workers realize the material conditions of labor , protection of workers' personal safety. Therefore , the company's internal organs , such as the employer of labor law is not on the board , on behalf of the company to exercise its best with human rights. In relation with the company 's directors , the company is the employer of labor law. Of course , the company as the employer , the employer is bound to exercise the rights , but the company as an organization , said he was unable to make sense , you need to make on behalf of its constituent people mean that the labor laws and regulations in order to be there meaningful activity . In the past, due to the company's governance model is " centrism shareholders ' shareholders will exercise all the rights of the composition of the shareholders of the Company. But the company's development and economic changes led to " Shareholders Centrism " model of corporate governance is no longer adapted to the modern development of the company , the company's governance in most countries tend to " Board of centrism ." In this governance model , the company and the company's operations all occurred separation. In other words , the company's shareholders to seek to maximize their own interests, the management rights of shareholders of alienation , and delivered by the company's operating pipe - Exercise Director , while retaining the right to decide the fate of the major issues affecting the company . All is definitely not the legal ownership of the company in the usual sense , rather, is on its shareholders a special " all " economic position in the company , which is the legal status of the performance of a combination of a series of rights , specific performance ( 1 ) maximize the interests of all shareholders is the highest economic behavior of the Target Company and its internal institutions ; ( 2 ) all shareholders on matters relating to the survival of the company or the fate of the fundamental right of final decision ; ( 3 ) the shareholders entitled to certain legally involved in the management and oversight powers and beneficial . In modern companies, shareholders will no longer composed of shareholders to exercise all of the management and operating decisions of the company , they will grant the company's top management of these rights - the Board exercised. Board of Directors composed of management company , the company's decision-making mode of operation , which could affect the company's shareholders to establish the fundamental objective . Hiring a director for the company 's shareholders have important significance , therefore , the composition of the company's shareholders will retain the rights of shareholders hiring directors. All companies operating in the separation process of the company , while shareholders transferring the management rights , but the fate of the company is on the right can never give up. In the process of hiring a director of the company , the company's use of human rights can only be exercised by the shareholders and the company.#p#分頁(yè)標(biāo)題#e#
In relation with the company 's directors , the company as the employer of labor law on the exercise of the rights , obligations on labor law , bear the corresponding legal responsibility. Company organization , to conduct intention and the corresponding legal activities on behalf of certain individuals to be exercised . Shareholders invested in the company , on behalf of the shareholders of the Company shall be made ??into the corresponding legal meaning of that activity . However , the company's developments destined reluctant shareholders or not engage all the legal activities of the company . Therefore, the company will face social hiring staff outside shareholders , the company as a director of the company's management and external affairs . In modern society, company labor law on the exercise of rights by the company's internal organization in the name of the company to exercise . The composition of the company's internal organization is divided into two categories: First, the company's business decision-makers , such as directors and supervisors ; Second, the company operated outside labor and decision-makers who ( referred to as general laborers ) . So the company has with human rights in two ways: First, the hiring company decision-makers , such as the rights of directors and supervisors , and the second is the recruitment of workers rights in general , including the company's senior management. Corresponding with the company's human rights are exercised by different institutions of the Company. For the first employment rights , the shareholders will be composed only by the exercise of shareholders , for the second with human rights and other internal organs by the company 's board of directors and authorized to exercise . In all cases separated company , directors by the shareholders of the company will be hiring production. Now the Act provides that " shareholders will exercise the following powers : ...... elect and replace directors as representatives from the workers , supervisors, decisions about directors, supervisors ...... remuneration matters ." Therefore, the relationship between the directors and the company , the company as an employer , hiring directors to exercise their rights by the company 's shareholders on behalf of the company .
Director of management company 's activities on labor labor law董事經(jīng)營(yíng)管理公司的活動(dòng)是勞動(dòng)法上的勞動(dòng)
Certain legal activities of certain legal relations, legal relationship is inseparable from human activity . Front , we made ??a simple relationship between labor law discourse , the concept and characteristics of labor legal relations , we see that the labor relations law in its own means of production workers and employers of labor combined with the realization of labor process occurs . Therefore, understanding the relationship between labor law inseparable from the workers understand. In relation with the company 's directors , directors' duties is the management company , conducted business decisions. In fact, we all understand the directors for the company's management has a long and complex nature , requires the directors of professional knowledge and expertise with the company's production combined. The Directors are not relations workers , directors and the company is not labor legal relations director of business management from the company's activities are not labor on labor law to start .#p#分頁(yè)標(biāo)題#e#
Labor is a very wide range of concepts , its meaning is often due to the different scope of application vary . Marx's " Das Kapital" , in the analysis of the labor process , the general definition of work done brilliantly revealed , namely: labor is the use of labor ( consumption ) , " is manufactured using the value of purposeful activity" , " people to their own activities caused material transformation process " to adjust and control human nature. Accordingly considered , the general sense of labor, is that people in the material and spiritual production and production processes , through the use ( consumption ) of labor , the use of labor acting on the object of labor , creating value in use to meet the needs of the people purposeful activity . The most concise expression , the use of labor that labor . Labor labor law in addition to a general sense of meaning , there its specific meaning. Including one from the main view, it is the workers ( employees ) are engaged in identity work . People who are not workers of the columns are engaged in , or is at the bar worker 's identity was other than to workers engaged in labor . 2, from the purpose of view, it is a means of livelihood as a professional labor . That is , in order to obtain compensation as their main source of livelihood , but also relatively fixed positions on certain labor are engaged in labor . 3, from the nature of view, it is a legal obligation to perform labor labor . That is, it is for the employer to fulfill labor laws , collective labor contracts and labor contracts as the basis of a legal obligation . 4 , from form view, it is the collective work of the employer . This refers to the various workers' organizations by the employer and the employer up command or assignment under the name of the employer of the common labor . Here, workers labor to be bound by the employer 's internal rules , governed by the will of the employer . In summary, the labor labor law sense, refers specifically to the workers engaged for a living , the performance of the labor laws , collective labor contracts and collective labor obligations under the contract .
Labor on Labor Law , under arrangements for managing the employer, workers use their own role in the process of employing labor units of production . We believe that the director of the management company's activities are labor labor law. In relation with the company 's directors , the company is the employer , the right to elect directors of the company are shareholders of the company will be exercised in the name of the company , in particular, the composition of shareholders of the Company on behalf of shareholders in the name of the company or the company's hiring as a company director the managers . Summarized in the company's directors authorized management companies use their own professional knowledge and expertise , the role of the company's material and human resources, production management company , the normal operation of the company to maximize the interests of the company . The company's internal and external environment changes, the transfer of management of the company from shareholders to the directors, the directors are increasingly becoming a profession , is the means of livelihood of workers . Now, shareholders of the company due to the limitation of their own conditions conditions , can not effectively management company , coupled with the existence of external competition has prompted the company began to seek professional management company personnel knowledge and expertise in the management of personnel other than shareholders . It is the most populous country , is rich in human resources, in a market economy , labor as a special commodity into the market , the formation of the labor market. In the labor market , there are a large number of personnel with expertise in the management company and expertise . Now the labor market oversupply is an indisputable fact. These factors have led to an increasingly professional directors , directors increasingly become a means of livelihood of workers . So, now the director as a profession , one of the means of livelihood of workers . Permissions composition of the Board of directors of the management company from the shareholders of the Company will be granted . This authorization is only general authorization , director of the management company has great discretion. It meets the needs of the company's normal operation. However, the authority of the directors of the management company to be subject to certain restrictions , which made ??the Company Law and the Articles of Association . Exercise of management of the company directors are not independent exercise on their own meaning , but the composition of the Board's collective exercise , and have a significant impact for the company shareholders will need to approve the transaction . In order to adapt to changes in the external environment and the company's normal operation , expanding the rights of the Board of Directors . However , shareholders invested in the company's fundamental goal is the pursuit of corporate interests and to maximize their own interests, then inevitably restrict the rights of the board, and the company has also set up a supervisor to oversee the agency 's director of the company's management activities . Therefore, the directors of the company will be hiring by the shareholders , the composition of the Board of Directors to implement management activities under the supervision of the company's shareholders authorized the monitoring and supervisory board. This activity is working with labor law sense.#p#分頁(yè)標(biāo)題#e#
In short , the composition of shareholders of the Company shareholders , on behalf of the company as the company's director of hiring managers and supervise the behavior of the board, firmly hold the right to decide on the fate of the matter . Directors of the Board in accordance with the shareholders' meeting are summarized management company authorized within the limits of the Articles of Association and the Companies Act , and accept the supervision of the shareholders and the board of supervisors . Director of business management process is a director of the company's own professional knowledge and expertise to act on the company 's production process. Therefore, we believe that the essence of management company directors labor labor law.
Workers is the legal age , have the ability to work , to engage in some kind of social labor as the main source of livelihood revenue , according to the provisions of law or contract, under the management of the employer to engage in labor and access to natural labor compensation . Common law and civil law for the definition of workers have different standards . Common law legal systems of control from four aspects , integrity , job supply and profit and loss define laborers . From the perspective of civil law from the definition of worker attributes . Now affected by the relatively strong civil law , therefore , labor law experts are now defined in civil law standard of workers . Theorists on the concept of workers devoted to rare and often only mentioned in textbooks , the main points are: 1, consider the concept of labor law on the broad , narrow sense , refers to a broad capacity and labor rights labor capacity , but not necessarily a natural person has been involved in labor relations ; narrowly refers only to the workers . Workers are also broad, narrow sense , refers to a broad labor rights and labor capacity and capability has been involved in labor relations, but not necessarily for the natural relationship between labor law , workers namely general legal sense ; narrowly refers only to have the ability of labor rights and labor capacity , and has been involved in natural law labor law relations, namely the workers labor law sense. 2 that the labor law and labor workers is one subject that corresponds to the user , is in accordance with the provisions of the law and contract management under the employer to engage in labor and get the corresponding reward individuals . 3 that the workers labor law sense, refers to any person employed in the modern industrial society to wages income for basic living source strength and intellectual workers . 4 that labor law now defines standards for workers is not clear , theoretical research is also inadequate , the proposed law on Japan to take " use from the property " as a laborer finds identity standards. Difficult to see from the definition given in academic workers , workers of different perspectives reflected in the range varies, some definitions only legal labor relations or labor relations workers , some are covered by the definition of the labor market laborers ; some definitions of qualified workers is limited , and some definitions covers the qualified and unqualified workers . For labor relations workers , have adopted the civil law " personality from the property " standard, which contains the definition of " management" that only provides no independent natural labor , is labor relations workers . For the legal concept of workers, now the " Labor Law" and "Labor Contract Law" did not give a specific explanation or description. "Labor Law" Article 2 states: " Enterprises in the territory of People's Republic of China , the individual economic organizations ( hereinafter referred to as the employer ) and laborers who form a labor relationship with this Law shall apply state organs, public organizations, social groups and . with the establishment of a labor contract labor relations , in accordance with this Law , " " Labor Contract Law " supplement to the foregoing slightly adjust its Article 2 : ." the territory of People's Republic of China enterprises, individual economic organizations , private non- enterprises and other organizations ( hereinafter referred to as the employer ) to establish labor relations and workers , the conclusion, performance , alteration, cancellation or termination of the labor contract , the applicable law . government agencies, public institutions, social groups, and with the establishment of labor relationships , conclusion, performance, alteration, cancellation or termination of the labor contract , in accordance with this Law . " from the scope of application of two laws , the natural relationship between labor and employers as long as we can call for the workers .#p#分頁(yè)標(biāo)題#e#
Combined with the labor law and workers now labor theory of legal norms concerning the provisions of workers , we believe that the director is a laborer labor law , the use of self- management firm specialized knowledge and expertise to achieve labor delivery company that operates management company. Board of Directors of the Company are summarized under the authorization of the management company , to develop the company's business plan program, which is a long and complicated process. The directors use their own management company specializing in the role of knowledge and expertise in the company's human resources and other means of production, to achieve the company 's production tasks , which itself is labor labor law. Their specific labor performance: on the outside, on the board of directors at the company's management and operating decisions make a decision and authorize other persons to the company name of the company to make certain legal activities. Directors on behalf of the company made sense says that when the corresponding legal activities , his personality is absorbed by the company . Internally, the director of the company's management activities under the supervision of the company of other agencies , such as shareholders and board of supervisors. In modern companies, the company achieved a separation of all the company , the company's governance model is the "Board centrism ." In this model of corporate governance , the shareholders decided to hold the company's decisions on major issues , such as the hiring company's business decision-makers and decide whether the dissolution of the company . The vast majority shareholders of the company does not have the specialized knowledge of the company , so the company will be awarded the management company of the company 's decision-makers , that director. All companies operating with the same kind of content nor clear, well-defined legal rights , is a special economic status - the internal organization and management of the company's operations , foreign companies doing business on behalf of its performance in the law the operating status of the person is legally entitled to protect their company and indicate the status of a specific legal rights. Company specific performance within the company , the directors of the exclusive enjoyment of the company's business operation and management rights ; to external companies, directors enjoy the uniqueness of the right to operate on behalf of the company's business . In this model of corporate governance , directors and management company engaged in the development of relevant legal activities , such as the company's operating plan for the subordinate companies. Board of Directors at the company 's daily management and operational decisions enjoy great discretion , and their ultimate authority from the shareholders of the Company will be granted , subject to the constraints of the shareholders' meeting . Now a large population, has a strong human resources. Labor as a special commodity in the market economy will enter the market , the formation of the labor market. In the labor market , there is a large number of personnel with expertise in the management company and expertise . The modern company in order to adapt to the new situation, the eyes will invest in hiring a director of the labor market . In short, the modern corporation , the shareholders from the company's directors are not necessarily hiring , hiring companies to those who have a professional management company knowledge and expertise from the labor market . Directors of the Board to implement the management company's activities outlined in the company 's authorized such activities has obvious procedural belonging labor labor law sense. Directors belonging to the company , the shareholders authorized the company outlined under management company and accept the supervision of the company other agencies. Therefore, the director is a laborer labor law.#p#分頁(yè)標(biāo)題#e#
In order to adapt to internal and external changes , ensure the normal and efficient operation, the company will be hiring a director by the shareholders of the company in the labor market . Board of Directors of the Management Company are summarized in the company 's authorization. Directors' rights management company 's competence must be exercised in accordance with the provisions of the Articles of Association and the Companies Act . The company's other agencies , such as the shareholders and the Board of Supervisors , to be director of the management oversight of the company's activities . Although the directors of the company enjoys a large discretion in the management of the company process, but the important matters of life and death decisions relations company firmly in the hands of the company 's shareholders . Therefore , the Directors is composed by the shareholders of the Company on behalf of shareholders of the company will be hiring , they formed the board management company . Director of management company 's activities are conducted under the supervision of the company , subject to the will of the company , is subordinate to the company's legal activities . In short , between the directors and the company, the company is the employer enjoys with human rights , fulfill corresponding obligations ; directors of the management company 's board of directors to implement the activities outlined in the company 's mandate , namely labor ; director is a laborer on labor law , the right to work , to fulfill corresponding obligations , the relationship between them and the company 's labor relations law .
Particularity of directors and the company's dispute settlement procedures董事與公司的糾紛處理程序的特殊性
Run relationship between labor law refers to the dynamic process of the formation and labor legal relations subsisting , expressed as a labor relations law , renewal , modification, suspension, termination and other aspects of workers and employers and the mutual rights and obligations between these sectors implementation. Labor relations , including running a labor law legal relationship , renewal , modification, suspension, termination and other links. A labor relations law is the law workers and employers to establish labor-law relationships , resulting in mutual rights and obligations. It is the starting point for labor-law relationships run the way it happened mainly administrative methods and contracts. Renewal of labor relations law is the extension of validity of the legal relationship of labor law . In such cases , the relationship between labor law after expiry of the original validity period still legally subsisting certain period , within that period , the two sides continue to enjoy when single and commitment with the original complete or substantially the same rights and obligations. Change the relationship between labor law refers to the legal relationship established content and object of labor law changes . It is usually expressed as changes in the positions of the unit 's workers , job , jobs , wages and the like. Suspension of labor relations law is the law of labor relations subsisting process, the main rights and obligations between the parties in accordance with law within a period of suspension of the exercise and performance , restore the previous normal state until after the expiry of the suspension period . In reality, it is mainly in leave without pay , seconded workers , workers suspected of crimes are occurring under the temporary vortex charge and so on. Termination of labor relations law refers to the rights and obligations of labor legal relations between the parties to destroy the law. In reality, there are circumstances in which they occurred : the body eliminate or loss due to the termination of certain qualifications ; due to resignation , dismissal or the termination of the agreement ; due to administrative decisions , arbitration awards or court judgments and termination. Now the " Labor Contract Law" for running labor relations law makes specific provisions . Directors as laborers , operating labor legal relations with the company , he is also in line with the provisions of the general labor law relations operation. But the director of the particularity of the status of the company , the directors and the company's decision to work with the special nature of the legal relationship between the run . Run a director with the company 's labor relations law is different from the general labor law relations , mainly differs from the established general legal relationship established labor relations in labor law . Establish general labor legal relations , there are two , one is the administrative way , the other is a way of contract . Now, workers and employers to establish labor relations law is mainly by way of contract , specific aspects as follows : ( 1 ) the employer or recruitment forms released to the community job seekers advertising ; ( 2 ) Job seekers or employers interrelated, two-way choice ; ( 3 ) the employer hired a notice issued to job seekers ; ( 4 ) the employer draft labor contract , introduced internal labor rules ; ( 5 ) the signature ( the signature ) and filing procedures . However, the directors and the company has established a labor contract relationship is mutual respect for autonomy under the conditions of hiring a director usually generated by the Company's shareholders . In addition , the first director of the Corporation , the company initiated the establishment of the occasion , elected by the sponsor ; occasions raised established by the founding meeting elected . But in the case of one company , the directors by shareholders assignment. There are individual countries, such as Germany, the provisions of the directors elected by the Supervisory Board . Director of a limited liability company may also specify provisions of the law or directly in the charter . In the direct provision of legal cases, most often prescribed for the course sensible contribution shareholders . According to the provisions of the Companies Act now , and now director of hiring the way there follows : (1) Under normal circumstances, the Directors by the shareholders' meeting to elect and replace ; ( 2 ) employees by the company 's directors TUC elections through democratic procedures and replacement ; ( 3 ) in the state- owned company , the directors are appointed by the state-owned asset management institutions ; ( 4 ) in the one-man company , the directors by shareholders assignment. In addition to the above situations , the special nature of the relationship between labor law between directors and the company is also reflected in the change operation and termination of labor relations law . The quality of management company directors , shareholders invested directly related to the realization of the company's goals or not , so what kind of director hiring management company related to the vital interests of the shareholders . So, hiring a director can only be produced by the shareholder composition of the shareholders of the Company.#p#分頁(yè)標(biāo)題#e#
The so-called labor dispute , the parties refer the dispute that labor relations between workers and employers because of labor rights , obligations arising from the dispute is based on the occurrence of labor relations , in short, is on the labor contract between the worker and the employer execution , change , performance, termination, dissolution disputes occur. In the present dispute between the increasingly With the deepening of reform , workers and employers because of labor problems caused by more and more. Now has promulgated the " People's Republic of China Labor Dispute Resolution Ordinance ", " People's Republic of China Labor Law ", " People's Republic of China Labor Dispute Mediation and Arbitration Arbitration Law " and other laws and regulations, the labor administrative department of the State Council established under the authority of laws and regulations relevant regulations , the Supreme Court required the introduction of a series of trial practice of judicial interpretation . These laws , regulations and judicial interpretations , to properly resolve labor disputes , labor disputes quell disputes between the parties , protect the legitimate rights and interests of workers and employers , regulate the labor market order , maintaining social stability is of great significance . Now the labor laws and regulations on labor dispute process definition and specific provisions . Now "Labor Dispute Mediation and Arbitration Law" according to Article 2 , the scope of the labor dispute are: ( 1 ) due to the recognition of labor relations dispute occurred ; ( 2 ) the conclusion, performance , modification, cancellation and termination of the labor contract dispute occurred ; ( 3 ) because of the removal , dismissal and resignation , leaving the dispute occurred ; ( 4 ) due to working hours, rest and vacation, controversial social insurance, welfare , training and labor protection occurred ; ( 5 ) because of labor remuneration , work injury medical expenses, economic disputes such as compensation or damages occurred ; ( 6 ) other labor dispute laws and regulations . Under the current provisions of Article 6 , " Labor Dispute Resolution Ordinance " provisions of Article 4, 5 , and "Labor Dispute Mediation and Arbitration Law" : the labor dispute , the parties shall be resolved through consultation ; unwilling to negotiate or the negotiation fails, may apply to the enterprise labor dispute mediation committee for mediation , the mediation fails, you can apply to the labor dispute arbitration committee for arbitration. The parties may also apply to the labor dispute arbitration committee for arbitration . Refuses to accept the arbitration award may apply to the people's court , except as otherwise provided by law.
According to company law disputes and judicial practice , between the directors and the company is now mainly include the following aspects : ( 1 ) a director with the company because of a dispute arising from the treatment ; ( 2 ) directors were shareholders of the company will remove him without cause and with disputes arising in ; ( 3 ) breach of the duty of care of directors of liquidated damages disputes ; ( 4 ) breach of fiduciary duty breach director compensation disputes . Compared with the general labor disputes, disputes arising between the directors and their handlers and the company is unique, mainly in the following aspects. First, the dispute between the directors and the company will inevitably occur at the company's director of business management activities, and disputes between them by the directors are often caused by improper management behavior , the victim is usually the company and shareholders . However, this can not exclude the possibility of the company against directors rights. Between the directors and the company, the company will always be a strong body , a director is weak. Shareholders invested in the company , they formed the shareholders elect directors Management Company, the directors go and stay in the company will be determined by the company's shareholders . Therefore, the possibility of abuse of the rights of shareholders of the Company will infringe the rights of directors . Second, the directors and the company's dispute involved stakeholders are diverse. In modern companies , in order to adapt to environmental changes inside and outside the company , shareholders will be for the benefit of the company, will give a general mandate to the directors Management Company, the directors in the management of the company's activities often have great discretion , so the directors in company in an important position. Director of management company will directly affect the vital interests of the Company and its shareholders , the choice of what kind of person as a director of the company's shareholders' interests often become the focus of the struggle , so the directors and the company's dispute involves the company and its shareholders interests. Meanwhile, the Board of Directors of the management company , decided to outside legal activities , the impact of the company for the benefit of a third person 's legal activities , therefore , a dispute with the company's directors are also related to the interests of third parties outside the company . Third, because the directors and the company's main dispute relates to a variety of interests, to resolve disputes between the directors and the company's program is different from the general labor dispute settlement procedures . General labor dispute handling procedures summarized as: workers and employers to negotiate or mediate in the third person involved in ; negotiation or mediation if the parties do not have results, you can apply for labor arbitration , or both direct application of labor arbitration ; labor arbitration satisfied before You can access to the courts . We want to emphasize that, in the director with the company due to labor payments related to the director of labor rights dispute , the subject of this dispute is a director and the company , not related to the interests of others , so for such disputes program should follow the general labor dispute process. However, due to improper management director disputes arising from the activities will involve a variety of stakeholders . Meanwhile, the provisions of the Companies Act now to resolve the dispute with the company 's director of programs , such as the resolution of the shareholders' meeting confirmed invalid , revoked subrogation shareholders and shareholder resolutions , etc. So, to solve this dispute do not have to follow the general labor dispute process. Fourth, the rights and obligations of workers labor law in general specification , so the law is generally labor dispute handling procedures used by labor laws and regulations . However , the directors and the company's relationship to the provisions of the labor law , company law and the Articles of Association also made more comprehensive provisions , therefore , the law in resolving disputes between the directors and the company's program was first used in the Act . Directors and company director disputes often due to improper management company caused this dispute involves a variety of subjects of interest , therefore, its handler is different from the general labor dispute settlement procedures .#p#分頁(yè)標(biāo)題#e#
Legal relationship between the directors and the company 's labor relations law and labor law is a special relationship . This legal relationship is special because of the special nature of the company's position in the directors , the directors of the company has a dual nature ; same time, they affect the company's management body is diverse interests of the directors in the company at an important position. Of course , the directors and the company's labor laws , compared to the general labor law relationship , in addition to the aforementioned several major differences, but also in the specific content of labor, labor compensation calculation , working hours , rest and vacation , etc. In short , the special status of the company's directors , a director with the company led to the special nature of the relationship between labor law . We recognize that this particularity, for us to correctly understand the legal relationship between the directors and the company is important .
Conclusion結(jié)論
With the development of market economy , the growing size of the company , more intense competition between companies , corporate governance model by the " Shareholders Centrism " to the " Board of centrism " to achieve the separation of all companies operating companies . Directors are shareholders of the company will be hiring in the name of the company , management company authorized under the company's generalization , but will also be supervised by the Company's shareholders and board of supervisors . Board of Directors of the management company , this activity is a long and complicated labor process , is director of professional knowledge and expertise to use their management role in the company 's production in order to achieve the company's management . In the course director of the management company , the legal relationship with the company took place . For the relationship with the company directors , scholars from different angles , facing such a legal relationship made ??a different answer. We are from the perspective of labor relations law to start , consider the legal relationship between the directors and the company 's labor relations law .
Labor legal relations between the directors and the company to make up for the shortcomings of the first four doctrine . Directors belonging to the company , the company's workers , foreign made ??legal activities related to the management company , which must be the company's legal action , the legal consequences borne directly by the company . Meanwhile, the director of the management company 's activities should be based on the company's generalization authorization be within the purview of the Companies Act and the Articles of Association , and the shareholders of the Company will be subject to supervision and the supervisory board. In modern companies, the process of composition of the board of directors of the management company enjoys great discretion , and this right is growing , there is always the risk of infringement of the interests of the company and its shareholders ; Meanwhile , the company's director of labor and identity has a dual nature , namely , the directors in the company both labor and management , both workers and is the manager . It is because of these factors led to a director position in the company is very special, to determine the specificity of the company 's directors . The relationship between the directors and the company 's labor relations law , labor law and a special relationship .#p#分頁(yè)標(biāo)題#e#
Reference Information參考文獻(xiàn)資料
( 1 ) Section K of " corporate governance structure model" , Beijing , Law Press, 2007 edition.
( 2 ) An Zhang Min of " Analysis of modern Anglo-American director of legal status " ( second edition ) , Beijing , Law Press, 2007 edition.
( 3 ) Lu Ping : " Exploration of the relationship between the directors and the company ."
( 4 ) Wang Quanxing the "Labor Law" ( second edition ) , Beijing , Law Press, 2004 edition.
( 5 ) Guo Jie editor of the "Labor Law " ( fourth edition ) , Beijing , and now University of Political Science Press, 2007 edition.
( 6 ) Hou Lingling : " The concept of research workers on labor law ", in " Journal of Yunnan University " ( Law Edition ) 2006 Section 1 .
( 7 ) Lu Mingwei : " On the identity of the directors of the company employees ", in " Journal of Guangxi Normal University ( Philosophy and Social Sciences ) " 2008 Vol 29 No. 4 .
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