德国监事会合格履职的组织法保障及对我国的启示

Organizational Guarantee for the Competent Performance of German Supervisory Board and Its Inspiration to China

我国监事会合格履职的最大障碍是履职保障机制,尤其是组织法保障的严重缺失。德国公司法规范已从创设特殊的职责履行人(如监事会主席和各类专门委员会)和完善内部程序性规则两个层面为监事会履职的组织法保障做出细致规定,监事会组成及任职条件方面的立法经验同样极富启发意义。为了应对飞速变化的公司实践,德国立法者还为公司做出“补充性”和“相异性”规定预留了巨大的自治空间。监事会自主设置的各类专门委员会有助于其更高效地履职。监事会,包括各委员会及监事会主席均有权以公司名义实施合格履职所必需的法律行为。

There is a consensus that the Chinese supervisory board system is not functioning well,and several scholars have put forward suggestions for the improvement from various perspectives.However,what has been neglected by the academic community is that the biggest obstacle to the qualified performance of the supervisory board is a serious lack of mechanisms to guarantee the performance of its duties,especially the protection of the organic law.While the current provisions of the Chinese corporate law on the Supervisory Board may seem flawless,with regulations upon the various powers and functions of the Board,there are several key points that have not been paid attention to and truly implemented.For example,the Supervisory Board's right to information,the Supervisory Board's right to appoint and dismiss personnel,the right to decide on remuneration,the right to arrange work,and the right to consent to the reservation of specific operations are all prerequisites for the Supervisory Board to exercise qualified supervision over the management behavior of the Board of Directors(and executives).Only after being given the power to perform its duties at the level of the organic law in addition to its statutory powers,the supervisory board can gain a superior independence from the board of directors and the company's executives,or have the authority to exercise strong supervision,so that it can truly become the superior body to the board of directors.The serious corporate crisis that broke out in the 1990s made German academics and practitioners believe that the passive behavior of the supervisory board could no longer meet the high requirements of modern corporate governance,and this led to a continuous and detailed study by corporate law scholars on the improvement of the legal system of the supervisory board,the results of which were of great significance in guiding the relevant legislation and effectively promoting the innovation of the legal system of the supervisory board.Thanks to the joint efforts of scholars and legislators,Germany has adopted a series of legal regulations,which provide a solid organizational guarantee for the efficient supervision of the supervisory board over the whole process of company management,including the composition of the supervisory board and the conditions for supervisory positions,the internal rules of the supervisory board and the establishment of special committees,as well as multiple safeguards for the performance of duties.In other words,the German corporate law provides for the organizational safeguards for the performance of the duties of the supervisory board from the creation of special duty-bearers(such as the chairman of the supervisory board and various special committees)and the improvement of internal procedural rules.In order to cope with the rapidly changing corporate practice,the German legislator has also left a great deal of room for autonomy in the form of“complementary”and“differential”provisions for companies.The supervisory board's autonomy to set up various special committees helps it to perform its duties more efficiently.The supervisory board,including the committees and the chairman of the supervisory board,is entitled to perform legal acts in the name of the company that are necessary for the competent performance of its duties.