分析董事与公司的法律关系:The legal relationship with the company's directors

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04-28, 2014

Summary 摘要

在现代公司中，公司的治理模式发生了变化，实现了公司所有与公司经营的分离，董事是由公司股东会在劳动力市场选聘。在这种治理模式中，董事组成董事会在公司的概括授权下经营管理公司，这种活动是董事运用自身的专业知识和专门技能作用于公司的生产资料实现的。董事经营管理公司的活动是具有劳动法意义的劳动，董事与公司之间的法律关系在这个过程中产生了。董事与公司之间的法律关系是劳动法律关系，而且是一种特殊的劳动法律关系。

In modern companies, the company's governance model has changed, and the company achieved all separate company, the directors by the shareholders of the company will be hiring in the labor market. In this governance model, the Board of Directors of the Management Company are summarized in the company's authorized use of this activity is the director's own professional knowledge and expertise to act on the company's production to achieve. Director of management company's activities are meaningful labor law legal relationship with labor, between the directors and the company generated in the process of. Legal relationship between the directors and the company's labor relations law and labor law is a special relationship.

I. Introduction引言

人们普遍认为，劳动者是指达到法定年龄，具有劳动能力，以从事某种社会劳动获得收入为主要生活来源，依据法律或合同的规定，在用人单位的管理下从事劳动并获取劳动报酬的自然人。

It is widely believed , is the legal age of workers with 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 . For the " workers " of the concept of connotation and denotation , 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 . From now on current labor laws and regulations , the current labor law does not require the directors are not workers .#p#分页标题#e#

现在劳动法没有对董事的劳动者身份做出明确的规定，加之，现在公司法没有明确规定董事与公司的关系的性质，因此，学者们对董事是不是劳动法上的劳动者提出不同的主张。

Now labor law does not make specific provisions for workers identity of directors , combined , now director of the Act did not clearly defined the nature of the relationship with the company , therefore , scholars laborers director of labor law is not put forward different ideas on . Directors of the Board , on behalf of foreign companies to make sense that the legal activities, including hiring workers , labor law and its relationship building activities . Legal acts in the name of the company directors are often made in the management of the company's activities, legal personality is absorbed by company directors , people will mistakenly believe that a director of the company 's agent or representative . This view is from the company 's director of external relations with the company 's understanding of the relationship . However, the internal relations director and the company is unable to explain. We believe that the relationship between the directors and the company 's labor relations law and labor law is a special relationship . This specificity is due to a director position in the company's decision. Correct understanding of the relationship between the director and the company , in favor of the qualitative nature of the relationship between the directors and the company , the directors and the company to resolve the dispute , especially because of the treatment of Directors dispute with the company is important .

在市场经济迅速发展的情况下，公司规模逐渐扩大，传统的公司治理模式——“股东会中心主义”不能适应公司的经营管理，所以，公司的治理模式转向了“董事会中心主义”。

In the case of the rapid development of market economy , the company gradually expand the scale , traditional corporate governance model - " Shareholders Centrism " can not meet the company's management , so the company's governance model turned " Board centrism ." In this mode of corporate governance , the Board plays a pivotal role in the company. The Board of Directors is composed of personnel of course , the exercise of the management of the company , outlined in the company 's authorized management company 's internal and external affairs , their position in the company is self-evident . This allows people to continue to study the legal relationship between the directors and the Company ( hereinafter referred to as the relationship between the directors and the company ) to correctly handle the interests of the directors and the company disputes. Company Law of our country does not specify the relationship between the directors and the company , so scholars relations director for the company 's controversial. Now after several amendments to the Act , the registered capital of the company fell to $ 30,000, should adapt to the socialist market economy, therefore , the number of small and medium sized companies are increasing year by year . In these companies , the shareholders of the company due to lack of management expertise and specialized skills , so in pursuit of maximizing the company's interests in the process, they can not effectively management company . At the same time , the increasingly strong external competition for survival , a large shareholder of the company began looking for staff with the management company specialized knowledge and expertise in the labor market to make the company's business manager - director. Therefore, the status of the directors have begun to increasingly professional. In real life , a director with the company disputes the treatment of problems caused by more and more , especially now since the "Labor Contract Law" , people relations director for labor law is not a laborer , a director and the company is not working legal relations were discussed. The correct understanding of our relationship with the company's directors have an important reference.#p#分页标题#e#

II. The relationship between the directors and the company董事与公司关系的概述

It is no stranger to the company , for more in-depth study of the company . For profit is a tool to establish the nature of the investment company shareholders on . Speaking this sense , how to make the company's normal operation, to achieve maximize shareholder value has become a problem. For this study raises the question of corporate governance research, research from corporate governance raises corporate governance model. There are two models of corporate governance , namely " shareholders centrism " and " Board of centrism " and that " the Board centrism " in the world will become mainstream. In the " Board centrism " model of corporate governance structure , the Board of Directors in the management of the company's business is growing . Whether it is corporate governance model is " shareholders centrism " or " Board of centrism ," the Board of Directors as an ex officio member , the management company's internal and external affairs , and affects the interests of the company and the shareholders. Scholars from different angles with respect to the relationship between the company's director of research , scholars from the research point of view, the directors and the company is now on the relationship between the four main theories , namely the relationship between the agent said , trustee relations , said the appointment of the relationship say and dual relationships said.

1 , agent relations said. Agents say the relationship think that the directors of the company 's agent , relationship with the company is fully applicable legal requirements regarding the agency relationship , the directors can only carry out the company's business management activities within the scope of authorization . Agents say the relationship is one of the representatives of the doctrine of common law , civil law , but also adopt this German said. British director position in the company will be regarded as an agent position , " the company itself can not by themselves to carry out activities ...... it can only be exercised through a director ." "They are activities carried out solely as agent of the Company within its purview , do not take personal responsibility ; in this case , it should be responsible for the company, "" the German Civil Code , " Article 26 ( 2 ) provides that: ." the board outside the statutory and legal representatives of the community ; Board has the legal representative position. scope of representation can be restricted by the articles of association , its role can be against a third person . " " German Stock Corporation Act , " the civil law on " The board of the company agent " further legislation to be clear and specific . Section 78 of the Act ( representative) of paragraph ( 3) clearly states: "The board members may be licensed separately or jointly with another agent on behalf of the company ." Section 82 of the Act ( on behalf of the authority and business executive authority limitations ) of ( 2 ) provides: " in relation with the company 's board members , their obligation to comply within the specified scope of the company's shares is determined by the Articles of Association, the Supervisory Board , the general meeting and the board of directors and supervisory regulations of the Council 's business restrictions on business execution permissions . " now some scholars also believe that , in the position of nominee directors in the company , its activities on behalf of the company without personal liability .#p#分页标题#e#

2 , the relationship between the trustee said . Trustee relationship originated in Britain early joint stock company , is based on historical facts equitable trust established . Fiduciary relationship in the traditional sense , is the director of the company trustee of the property , while the shareholders of the company is both a company's property is the property of the principal beneficiaries of the company 's own independent legal status is not clear. Then the directors of the company as trustee groups enjoy legal ownership of property , and bear the corresponding principal obligations , and later an independent legal personality has been established , the company's property and belong to the company or the board instead of all sensible all the case law Directors called on the trustees , mainly refers to the director of the obligations of the Company , the relationship between the director and the company is also a non- fiduciary relationship in the traditional sense .

3 , the appointment of relations said. Seen by appointment , said the relationship between civil law countries , mainly in Japan and the doctrine and present legislation and scholars in Taiwan as the representative . "Japanese Commercial Code ." ③ 1 of the Act No. 254 requirements : . " Relationship between the company and the directors , in accordance with the provisions relating to the appointment of " in this legal relationship , the company appointed , director of consignee , the company's property management and operating appointed targets. Now the "Taiwan Company Law" refer to the Japanese Shoji legislation : the relationship between the company and the directors , except as otherwise provided in this Act , in accordance with the provisions of the Civil Code relating to the appointment . Taiwan scholars Zhengyu Bo believes that remuneration of directors has a relationship , so this appointment , " belongs to a paid appointment , so its duties , should pay attention to the good management of human obligation ." Now Professor Wang Baoshu continent also advocates relations director for the appointment of the relationship with the company , and that such appointment contractual relationships with other appointment is different in that it was established only in accordance with the resolutions and elect directors of the general meeting of the promised office. Director appointed under the relationship , "but its appointment made business decisions on corporate affairs and business executive powers , the Directors may, at its appointed corporate matters ."

4 , dual relationships said. The director said that the dual relationship with two identities , that is outside the company's agent, is the company's internal consignee . Accordingly, the directors have the right nominee and trustee obligations agents and trustees . Now, Zhang Ming An PhD is the doctrine of the positive idea of who. Dr. Zhang Minan that in civil law countries, agency relationship exists between himself and the third person, and then there is the appointment of the relationship between man and consignee appointment . However, the directors as a representative of the company, in foreign activities , and not just the relationship between the directors and the company must also be related to the interests of third parties , together with the directors should assume joint legal acts with the company on its third person responsibility.#p#分页标题#e#

III.Conclusion: The director of labor relations and the companyIII.结论：董事与公司劳动关系

Relations director with the company labor relations law , but because of the company 's directors as managers in the company has a status different from ordinary workers , which led to the relationship between labor law and the company 's directors have the particularity. Social systems theory perspective, a person may have a variety of different identities and roles in society , the status of the directors in the company 's directors decided to have a different role. With respect to the company , the directors are shareholders of the company will be hiring behalf of the company , the management company of the workers ; relative to the company's general laborer ( hereinafter referred to as general laborers ) , the directors authorized in accordance with the company's management arrangements outlined general workers labor on behalf of the company exercised its use for human rights, is the company 's general manager of workers ; this is the duality of Directors that the dual nature of the labor director and director of the dual nature of identity . Duality director of labor, is the director general of workers according to the company's management company engaged in licensing arrangements for labor , which is working for the company , is one of the activities of their management company ; However, relative to the general worker , is to manage behavior. The dual identity of the directors , the directors of the composition of the Board is the management company , including the arrangements for managing general laborers labor tasks , is a director of the company to complete the work delivered , so the directors are laborers ; However, in general it seems their labor workers subject to arrangements for the management of the Board, therefore , the directors are managers . Taiwan scholars Shi Shangkuan that hire people who have the same time as a servant , for example, contracting foreman , the studio head , division head , business people and other family inside the palace , which they used for auxiliary workers to hire people , and for those companies was servants . That is why we believe that the relationship between the directors and the company 's labor relations law and labor law is a special relationship . This specificity qualified workers mainly in the running of directors , the directors and the company 's labor relations law , labor rights and obligations of directors and the Managing Director of the configuration with the company to produce labor disputes and other aspects .

Qualified workers means that citizens become laborers must have a statutory prerequisite. This collectively on the qualifications of workers labor law , labor rights and labor capacity , including its ability to conduct joint determine the scope of citizen participation in the labor relations law and the enjoyment and exercise of labor rights and assume and fulfill the scope of work obligations. Qualifications of workers affected by two factors , namely the ability of labor rights and labor capacity . The so-called ability of labor rights , the law means that citizens can enjoy labor rights and assume the obligations of qualified labor . It shows what can become citizens legally entitled to labor rights and labor obligations which the bearer . The so-called labor capacity , means that citizens are able to exercise the right to work legally eligible to work and fulfill the obligations of their own behavior. It shows what can become a citizen legally exercise of labor rights and labor which fulfill those obligations . Only citizens of their ability to work in the national interest to achieve the required level and social interests , and can freely dispose of their own conditions , and will have to be confirmed by the labor law labor capacity . The ability of citizens to conduct labor by age, health , restrict freedom of intellectual and behavioral factors. A natural person , provided they have the ability to labor rights and labor capacity can become a laborer labor law. But the director employed by the company , according to the company's authorized management company , which is required of high integrity and management company specializing in knowledge and expertise . Good conduct of the directors, outstanding expertise that decides whether they can play this role. In other words , management is a complex and specialized labor, not everyone can engage in this work.#p#分页标题#e#

Board of Directors of the management company , have a qualified labor labor law , but the Act also made them more stringent eligibility requirements . Theory is believed that director qualifications generally include positive and negative eligibility qualifications two kinds. The former is a requirement to serve those who must have the condition , such as nationality, age and other qualifying shares ; which means that once it can not serve as a director with restrictive conditions, such as conduct conditions , specific identity , part-time prohibition . States actively director eligibility requirements mainly in age, qualification shares and nationality three areas. First of all, basically all countries require directors shall have full capacity , some countries place restrictions on the age limit , such as France , " Shoji Company Law" ( 1994 Revision ) and the United Kingdom Companies Act 1948 . On the issue of qualification shares held certain that includes early British company law, such as Japan held a negative to say , the legal requirements and regulations shall be imposed for the shareholders of the company directors ; addition , Germany and the United States to take a compromise approach to this requirement autonomy to the company , the directors agreed to allow the company by the articles of association must be shareholders of the company , but the law does not make forcing . Finally, on nationality, only a few countries , Sweden , Switzerland, the provisions of this . The so-called negative qualification generally refers to people who have some special circumstances , may not serve as directors of the company .

Negative qualified to make provision for directors , company law is the general practice countries , such as Japan, " Business Law " stipulates that interdicted or prospective interdicted person , restoration of rights without being declared bankrupt person may not serve as directors of the company . Countries in the Act satisfied eligibility requirements for directors negative , mainly in the following areas 1 , with certain offenses not yet concluded who have committed certain crimes or sentences not exceeding a certain period after the expiration of those who can not serve as a director ; 2. incapacitated person with limited capacity , not as a director ; 3 , engage in certain specific occupations , such as military, civil servants , notaries and lawyers ; 4 , supervisors can not serve as a director of the same company . Now the provisions of Section 147 provisions " of the following circumstances shall not serve as the company's directors, supervisors and senior management : ( 1 ) no civil capacity or with limited capacity for civil conduct ; ( 2 ) due to corruption, bribery, embezzlement of property , misappropriation of property or destruction of the socialist market economic order, and was sentenced to punishment , sabotage of , or a person who has been deprived of political rights expire less than five years ; ( 3 ) as the liquidation of the company , the company's director or director , manager, the company , the company's bankruptcy personally liable , since the company less than three years from the date of completion of the liquidation of bankrupt enterprises ; ( 4 ) as a result of illegal business license revoked , ordered to close companies, corporate legal representative , and personally liable , since the company , the revocation of the business license from the date of less than three years ; ( 5 ) persons who have a large amount of debt due and outstanding " in . under the "Board centrism " model of corporate governance , directors of the board management company , their behavior directly affects the interests of the company and the shareholders of the company , in an important position in the company, so qualified workers is different from the general director of workers labor qualifications.#p#分页标题#e#

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