美国公司法中英文教程Chapter 3

Chapter 3THE CORPORATE STRUCTUREI. GENERAL ALLOCATION OF POWERS权利配置A. Traditional scheme传统模式: A "traditional" scheme forallocating power in the corporation (reflected in moststatutes) is as follows: [49]1. Shareholders股东: The shareholders act principallyby: (1) electing and removing directors; and (2)approving or disapproving fundamental or non-ordinarychanges (e.g., mergers). [49]2. Directors董事: The directors "manage" thecorporation’s business. That is, they formulatepolicy, and they appoint officers to carry out thatpolicy. [49]3. Officers高级管理人员: The corporation’s officersadminister the day-to-day affairs of the corporation,under the supervision of the board. [49]4. Modification修改: This traditional allocation ofpowers usually may be modified by the corporation whereappropriate. This is often done in the case of closelyheld corporations. [49]B. Powers of shareholders股东权利: The main powers of theshareholders are as follows:1. Directors选任和撤销董事: They have the power toelect and remove directors. [50]a. Election: Shareholders normally elect thedirectors at the annual meeting of shareholders.In other words, directors normally serve aone-year term. See Revised Model BusinessCorporations Act (RMBCA) get to approve ordisapprove of fundamental changes not in theordinary course of business (e.g., mergers,sales of substantially all of the company’sassets, or dissolution). [50]C. Power of directors董事权利: The directors"manage"the affairs of the corporation. [51]1. Shareho lders can’t give orders股东不能要求董事采取任何具体的经营行为: Thusshareholders usually cannot order the board ofdirectors to take any particular action. [51]2. Supervisory role监管角色: The board does notoperate the corporation day to day. Instead, itappoints officers, and supervises the manner inwhich the officers conduct the day-to-dayaffairs. [51]D. Power of officers高级管理人员的权利: Thecorporation’s officers are appointed by the board,and can be removed by the board. The officers carry outthe day-to-day affairs. [52]I.权力配置A．传统的权利配置模式：1、股东权利：选任和撤销董事；公式重大事项的决策权2、董事权利：通过选任该级管理人员负责公司的经营管理，制定公司的经营方针。

3、高级管理人：负责公司日常事务的实际责任人。

4、现在的公司通常按照公司运营的实际需要进行权利的配置。

II. BOARD OF DIRECTORS 董事会A. Election选任: As noted, members of the board ofdirectors are always elected by the shareholders. [53]1. Straight vs. cumulative: The vote fordirectors may either be "straight" or"cumulative." (In most states, cumulativevoting is allowed unless the articles ofincorporation explicitly exclude it.) [54]a. Cumulative累积投票制: In cumulativevoting, a shareholder may aggregate hisvotes in favor of fewer candidates thanthere are slots available. (Example: Howns 100 shares. There are 3 board slots.H may cast all of his 300 votes for 1candidate.) This makes it more likely thata minority shareholder will be able toobtain at least one seat on the board.i. Removal of directors董事的撤销:If cumulative voting is authorized,a director usually may not beremoved if the number of votes thatwould have been sufficient to electhim under cumulative voting isvoted against his removal.II.董事会A．选任，董事由股东选举产生。

1、直线投票制和累积投票制直线投票制，其实是将整个董事会作为整体进行投票，会依据各个股东所持的股份决定其所提名的董事会的得票数，这样很容易造成，整个董事会的选任决定权就大股东手中，其余股东提名的董事很可能全军覆没；累积投票制，将单个董事作为投票对象，一个股东可以将其所有得票投在一位董事身上，因此，在董事会中除绝对大股东外的其余股东也可以选任自己的董事。

B. Number of directors董事人数: The number ofdirectors is usually fixed in either the articles ofincorporation or in the bylaws. Most statutes requireat least three directors. Most statutes also allow thearticles or bylaws to set a variable (minimum andmaximum) size for the board, rather than a fixed size.(If variable size is chosen, then the board gets todecide how many directors within the range there shouldbe.) [59]C. Filling vacancies董事空缺的填补: Most statutesallow vacancies on the board to be filled either by theshareholders or by the board. [60]1. Term任期: Statutes vary as to the term of areplacement director: some let him serve thefull unexpired term of his predecessor, othersmake him stand for reelection at the next annualmeeting. (This only matters if thepredecessor’s term was for more than one year).[60]2. Classes of stock: The articles ofincorporation may give each separate class ofstock the power to elect one or more directors.[60]3. Holdover director董事的延期: A directorholds office not only for the term for which heis elected, but until his successor is electedand qualified. A director serving beyond the endof his term is called a "holdover"director. [61]D. Removal of directors: Most modern statutes provide that directors may be removed by a majority vote of shareholders, either with or without cause. Modern statutes also generally say that a court may order a shareholder removed, but only for cause. [61]1. No removal by board: But in most states adirector may not be removed by his fellowdirectors, even for cause. [63]B．董事会人数通常由公司章程或规章制度规定。