【作者】 朱双庆；

【导师】 黄志斌；

【作者基本信息】 合肥工业大学 ， 企业管理， 2010， 博士

【摘要】 在知识经济时代,随着技术数量的激增,公司法的日益完善以及更多当事人倾向通过技术入股实施技术成果产业化,技术入股型公司大量涌现,并成为知识经济的一种象征。但是目前的公司治理理论建立在资金为核心生产要素的公司基础之上,没有反映技术股权的特殊内容,没有反映技术股权与经营管理权关系,也没有反映对技术入股股东及入股技术的监督检查情况,因此这必然呼唤建立有特色的技术入股型公司治理理论。在法治时代,管理的原则和要素越来越嵌入在法律中,个人和组织行为越来越受法律保障与制约;另外,法律应该反映实践效果良好的公司治理。同时,实践中的技术入股型公司治理问题也日益凸显。因此以法律的视野研究技术入股型公司治理,为我国技术入股型公司治理立法献计献策,并在法律框架内寻求技术入股型公司管理智慧,为技术入股型公司治理实践提供帮助,这更加符合法治时代要求。本文在系统梳理和分析学术界对技术入股型公司治理问题研究的主要成果、不足和空白的基础上,运用比较制度学、法解释学、系统论、绿色和谐管理和社会学的研究方法,围绕技术入股型公司治理的构成要素和制度设计进行了创新研究。本文主要的研究内容与成果如下:1.技术入股型公司的股权关系。现有文献没有系统研究技术股权。本文通过技术入股型公司股权的形成和结构的研究,认为技术股权表征技术入股型公司股权。技术入股型公司的股权结构由物质股权和技术股权构成,它们结合的法律基础在于人合。技术入股型公司生产经营方式为入股技术密集型,技术推动而不是资金推动成为该公司最重要的生产动力,技术也是该公司最重要的资本形式,因此技术股权比物质股权更表征了技术入股型公司股权特点。技术股权具有相对稳定性。技术股权法律关系有三要素,其主体为技术入股者,其客体为入股技术,其内容为技术入股股东享有的权利与义务。这为研究技术入股型公司的人合管理、入股技术管理和当事人权义利责管理提供了法律框架。2.技术入股型公司的经营管理组织。现有文献认为“技术入股股东的股权与经营管理权相分离”。本文通过22家技术入股型公司的相关数据的实证研究和理论分析,认为技术入股股东的股权与经营管理权通常合一。这是由下列因素决定的:技术入股型公司的人合性、风险资本进入技术入股型公司、技术股权对经营管理权的“股权控制”和“技术控制”双因素、技术入股股东的发起人资格与技术入股股东适应管理信息化的品性。这为技术入股型公司经营组织的制度设计提供了理论依据。3.技术入股型公司的监督检查。现有文献主要指向公司监事会制度,并且没有结合技术入股型公司实际情况。本文通过技术入股型公司的监督检查组织与监督检查内容的研究,认为技术入股型公司的监督检查重点为“入股技术”和“技术入股股东”。技术入股型公司的监督检查组织不仅包括监事会,还包括风险资本家和检查人。入股技术价值的不易确定性,入股技术合同的复杂性,入股技术信息不对称性以及技术入股股东的股权与经营管理权通常合一等因素决定了技术入股型公司的监督检查重点为“入股技术”和“技术入股股东”,前者主要包括入股技术构成要件的监督检查和入股技术评估的监督检查,后者包括监督检查技术入股股东信托责任和特殊义务的履行以及技术入股股东特殊权利的行使。这为技术入股型公司提供了监督检查的管理主体和管理重点。4.技术入股型公司治理的管理制度设计。现有文献没有具体的技术入股型公司管理制度。本部分基于上述技术入股型公司治理的构成要素的研究,认为技术入股型公司法律特征决定其有别于普通公司的管理制度设计。技术入股型公司的股权关系制度设计包括人合管理制度、入股技术的管理制度和权义利责管理制度,其中人合管理包含信任要素、合作要素和分享要素;在入股技术的管理中,技术入股型公司首先应该消化吸收入股技术,并在此基础上实施技术创新,最终建立技术入股型公司技术池;技术入股型公司管理应该遵循当事人权义利责平衡原则。在技术入股型公司的经营组织制度设计中,技术入股型公司应该根据自身特点在经营管理中设置技术管理者职位;技术入股股东行使经营管理权利大于弊。在技术入股型公司的监督检查制度设计中,技术入股型公司监事会成员可以由技术入股股东的代表、其他股东的代表和公司职工代表构成;技术入股型公司章程可以赋予监事会对该公司特定交易行为的事先批准权;确认“股东出资填补义务”情形并委任检查人需要遵循谨慎原则。这为技术入股型公司的法律制订和管理实践提供了参考。更多还原

【Abstract】 During the era of knowledge-based economy a corporation with technology as its capital contribution rapidly emerges and becomes the symbol of the era because of lots of technologies, perfect company law and the will of an interested party to invest technology as capital contribution. But the present theory of corporate governance is based on funds core element of corporations. It doesn’t give a representation of technological stock equity, relations between technological stock equity and the rights of operation and management, and supervision with regard to shareholders with technology contributed for capital and contributed technology. These call for theory of governance of a corporation with technology as its capital contribution.During the era of rule of law, the managerial principles and elements are embedded in law and the behavior of persons and entities is proteced and restricted by law; besides, law should reflect good practical corporate governance. The actual problems of governance of a corporation with technology as its capital contribution are emerging. So it can tally with the demand of era of government by law to research on governance of a corporation with technology as its capital contribution in legal context. Besides, it can afford legal reference, managerial wisdom and practical help for governance of a corporation with technology as its capital contribution.The dissertation analyses chief achievements, shortcomings and blanks on governance of a corporation with technology as its capital contribution. On the basis of it, the dissertation researches on the component elements and institutional designs of governance of a corporation with technology as its capital contribution with comparative system, legal construction, systematic way, green harmonious management and sociology. The main content and achievements of dissertation are as follows.1. The relationship to stock equity of a corporation with technology as its capital contribution. Literature now available doesn’t make a systematic study of technological stock equity. After researching formation and structure of stock equity of a corporation with technology as its capital contribution, the dissertation holds that technological stock equity features a corporation with technology as its capital contribution. The structure of stock equity on a corporation with technology as its capital contribution consists of material stock equity and technological stock equity. They are united because a corporation with technology as its capital contribution is a personal corporation. A corporation with technology as its capital contribution in production and management is technology-intensive, it becomes the corporation’s most important driving force to technology instead of fund, technology is the corporation’s most important form of capital, so technological stock equity features a corporation with technology as its capital contribution more than material stock equity does. Technological stock equity remains stable. Legal relation on technological stock equity has three key elements, subject of which is a person who converts technology into shares, object of which is technology contributed as capital , and content of which are rights and duties of a shareholder with technology contributed for capital. It provides legal frame for research on personal management, technology contributed as capital management, and party’s right-duty-benefit-liability management of a corporation with technology as its capital contribution.2. Organization of operation and management of a corporation with technology as its capital contribution. Literature now available all advances“the separation of the rights of shareholders with technology contributed for capital and the rights of operation and management”. After researching the data collected through 22 corporations with technology as its capital contribution, the dissertation advocates the usual integration of the rights of shareholders with technology contributed for capital and the rights of operation and management. It is due to the following reasons. A corporation with technology as its capital contribution is a personal corporation. Venture capital is invested in a corporation with technology as its capital contribution. Technological shares control the rights of operation and management by equity and technology. A shareholder with technology contributed for capital is the corporate promoter. And a shareholder with technology contributed for capital can adapt himself to information management. It affords theoretical foundation for institutional designs of organizational structure of a corporation with technology as its capital contribution.3. Supervision and check of a corporation with technology as its capital contribution. Literature now available studies board of supervisors, but doesn’t consider the actualities of a corporation with technology as its capital contribution. Through researching organization and content of supervision and check in a corporation with technology as its capital contribution, the dissertation holds that focal points of supervision and check are technology contributed as capital and shareholders with technology contributed for capital in a corporation with technology as its capital contribution. In a corporation with technology as its capital contribution, organization of supervision and check consists of board of supervisors, risk capitalists, and checkers.The difficulty in determining the value of technology contributed as capital, the complexity of the contract of technology contributed as capital,information asymmetry of technology contributed as capital, and the usual integration of the rights of shareholders with technology contributed for capital and the rights of operation and management, which determine focal points of supervision and check: technology contributed as capital and shareholders with technology contributed for capital in a corporation with technology as its capital contribution. The former consists of supervision and check of constitutive requirements and assessment of technology contributed as capital. The latter consists of supervision and check of fiduciary duty, special rights and duties of shareholders with technology contributed for capital. It provides focal points of supervision and check, technology contributed as capital and shareholders with technology contributed for capital, for a corporation with technology as its capital contribution.4. The designs for system of management on governance of a corporation with technology as its capital contribution.The legal characteristics of a corporation with technology as its capital contribution determine its design of system. Literature now available lacks concrete design of system on a corporation with technology as its capital contribution. The dissertation maintains that the legal characteristics of a corporation with technology as its capital contribution determine its design of system discriminated from common corporations. The designs for the relationship to stock equity of a corporation with technology as its capital contribution consist of personal management, technology contributed as capital management, and right- duty-benefit-liability management. Personal management consists of trust, cooperation, and share. In technology contributed as capital management, first a corporation with technology as its capital contribution should assimilate technology contributed as capital, then it should innovate in technology on the basis, and its ultimate aim is technology pool of a corporation with technology as its capital contribution. The management of a corporation with technology as its capital contribution should obey the principle of balance among right- duty-benefit-liability. A corporation with technology as its capital contribution should set up the position as a technical manager in its operation and management. A shareholder with technology contributed for capital controls the rights of operation and management, which has the advantages of disadvantages. In the designs for supervision and check of a corporation with technology as its capital, members of board of supervisors consist of representatives from shareholders with technology contributed for capital, other shareholders and corporate staff. To counter the corporate special things, articles of a corporation with technology as its capital contribution may entrust to board of supervisor rights of ratification. It follows the precautionary principle to confirm "the shareholders to fill the funding obligations" case and appoint the examiner. It affords law-making and management practices for a corporation with technology as its capital contribution.更多还原