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在万科控制权事件之争中暴露出许多问题,其中包括有关上市公司股东大会和董事会职权之争的问题。在相关法律规定不明确的情形下,随着上市公司股东大会和董事会职权冲突的不断扩大,上市公司章程成为它们争权夺利的主要战场。因此,如何规范上市公司章程中有关股东大会和董事会职权的自治范围和限度是问题的关键。上市公司章程对于股东大会和董事会职权的自治权受到《公司法》和《上市公司章程指引》中强制性规范的限制,对于法条中列举的属于股东大会和董事会的专属权利,不得通过章程任意变更。对于法条中规定可以由章程自行规定的权利,上市公司章程可以根据股东大会和董事会在公司中的地位自行制定。
In the controversy over the control of Vanke, a number of issues were exposed, including the issue of the dispute over the powers and responsibilities of the general meeting of shareholders and the board of directors of a listed company. Under the circumstance that the relevant laws and regulations are not clear, with the continuous expansion of conflicts of powers between the shareholders’ general meeting of the listed company and the board of directors, the articles of listed companies become the main battlefield for their power struggle. Therefore, how to standardize the scope and limits of autonomy in the Articles of Association of listed companies regarding the powers and responsibilities of the general meeting of shareholders and the board of directors is the crux of the issue. The Articles of Association of listed companies, the autonomy for the general meeting of shareholders and the powers of the board of directors are subject to the mandatory norms in the “Company Law” and the “Guidelines for the Articles of Association of Listed Companies”. For the exclusive rights as listed in the Articles of Association that belong to the shareholders’ general meeting and the board of directors, change. For the provisions of the law can be provided by the statute’s own right, the articles of association of listed companies can be based on the general meeting of shareholders and the board of directors in the company’s own position.