If you do something, you can do something wrong.
In recent years, there have been many problems in the operation of state-owned assets, but few state-owned assets supervision institutions (SASAC and local state-owned assets departments) are responsible for this.
It is puzzling that article 75 of the draft stipulates that a wholly state-owned company does not have a shareholders' meeting, and the state-owned assets supervision and administration institution shall exercise the investor's duties on behalf of the state. This provision is tantamount to fixing the highly unified pattern of SASAC "boss plus mother-in-law" determined in the Provisional Regulations on the Supervision and Administration of State-owned Assets of Enterprises in May 2003, and its disadvantages are obvious.
Facts have repeatedly shown that under the integration of state-owned assets operation and supervision, corruption such as abuse of power for personal gain is rampant, and the efficiency of supervision and punishment is accelerated and weakened, which is almost an inevitable fate. As the working capital of government departments, state-owned assets supervision institutions are tantamount to using "power" instead of "market mechanism" to allocate resources. They are both athletes and referees, and the consequences are obvious. China Aviation Oil (SINGAPORE) speculated on crude oil futures, resulting in a huge loss of $550 million. China Cotton Storage, whose mission is to stabilize cotton prices and stabilize the market, gambled heavily on the domestic cotton market, and suffered a huge loss of nearly 6,543.8 billion yuan after the failure of speculation. It is hard to say that the state-owned assets supervision department in charge of supervision is not responsible for these incidents.
Supervision and management must be separated, which is the most basic legal principle. Because of this, China is stepping up the formulation of laws and regulations on the authorized operation of central enterprises. Article 72 of the current Company Law stipulates that "a large wholly state-owned company with a sound management system and good operating conditions may be authorized by the State Council to exercise the rights of asset owners." This provision could have provided a legal basis for the authorized operation of state-owned assets, that is, the State Council authorized qualified wholly state-owned companies as representatives of investors, who exercised their human rights to contribute to subordinate production and operation enterprises, while the state-owned assets department was responsible for supervision. However, this provision was deleted from the draft, and at the same time, the provision in the current company law that "national staff shall not serve as company executives" was deleted. However, it is stipulated that state-owned institutions perform the responsibilities of investors on behalf of the state. On the one hand, it blocks the legal space for authorized operation, on the other hand, it is easy to cause the misunderstanding that more than 170 central enterprises directly under SASAC are affiliated enterprises internationally. If so, central enterprises will face huge costs brought by uncertain litigation.
Understanding the company law in the above way, it is not difficult to find many gaps in the draft: first, the draft article 15 1 stipulates that the board of directors of listed companies should have more than 1/3 independent directors. What is the legitimacy of this mandatory provision? In fact, since 200 1 CSRC issued the Guiding Opinions on Establishing Independent Directors in Listed Companies, the effectiveness of independent directors has been mixed. The proportion of independent directors in the board of directors is mandatory until there are no conclusive facts and experiences to show that independent directors have a significant role in improving the governance level of listed companies, and their market foundation is not solid. Generally speaking, the company laws of American states neither define nor require companies to have independent directors, but the stock trading rules of new york Stock Exchange and Nasdaq have indeed improved the brand and reputation of the exchanges to a great extent. In addition, the general idea is that there are several independent directors among the board members, which should be left to the market to judge. If the market recognizes the value of independent directors, once the company has no or less independent directors, its share price will fall, thus forcing the company to increase independent directors. The market has its own adjustment function. Moreover, it should be pointed out that there is no empirical or empirical research that shows that the board of directors contains more than 1/3 independent directors (instead of 1/4, 2/5 or other proportions), which is most conducive to improving corporate governance.
Secondly, from the analysis of economic structure, due to the small number and scale of shareholders, it is more likely for shareholders of limited liability companies to reach an agreement through consultation, so shareholders of limited liability companies should be given more autonomy and the relevant provisions of the company law should be more flexible and arbitrary. However, Articles 4 1 and 42 of the draft respectively stipulate that the resolutions of the shareholders' meeting of a limited liability company on matters such as the increase or decrease of registered capital, division, merger, dissolution or change of corporate form, and modification of the articles of association of the company must be passed by shareholders representing more than two thirds of the voting rights, and these matters are not stipulated separately in the articles of association. But imagine, if the major shareholder of a limited company holds 67% of the shares, then one person will have the final say on both general and major issues. In this case, other shareholders claim that the articles of association stipulate that "major issues must be passed by shareholders holding more than 3/4 of the voting rights", and they are faced with legitimacy problems. This situation will make the company face difficulties such as failure to establish or deadlock after its establishment.
Third, the draft still stipulates the listing conditions of the company and has strong adaptability to the market. In fact, this matter can be stipulated by the listing rules of the exchange. As a part of the listing contract, it is not only legal and smooth, but also easy to be revised in time with market changes.
Fourth, Article 89 of the draft stipulates that when a joint stock limited company is established, there shall be no less than five promoters and no less than 200 promoters ... When a state-owned enterprise is transformed into a joint stock limited company, there may be no less than five promoters. A joint-stock company requires more than one sponsor, and its fundamental function is to establish a mechanism of checks and balances between sponsors. If one of the sponsors goes public with inferior assets as high-quality assets, it will inevitably be strongly opposed, because it will damage the interest share of other sponsors. However, the law stipulates that there can only be one sponsor in the restructuring of state-owned enterprises, which undermines this checks and balances mechanism and provides legal space for state-owned enterprises to package and list and deceive investors. If we don't change the motivation of state-owned enterprises to go public and circle money, the situation of the stock market will change, which is hard to predict.
Judicial intervention in corporate autonomy?
In the period of social transformation, faced with the reconstruction of rules and the renewal of knowledge, the court has a heavy burden. As far as knowledge learning is concerned, the court has passively begun to learn new knowledge such as subordinated creditor's rights, securities credit evaluation, securities investment funds, company surplus distribution, acquisition of listed companies, real estate consulting, bank settlement, property management, cable TV viewing and so on.
It can be predicted that if the basic framework of the draft does not change greatly, the court will be involved in a new wave of learning, and even learn to consider the issue from the perspective of businessmen. Try to analyze some new clauses in the draft as examples.
Article 14 of the draft stipulates that companies engaged in business activities must "fulfill their social responsibilities". But what kind of "social responsibility" should the company bear besides making money and paying taxes? If someone sues the company for "failing to fulfill its social responsibilities", what should the judge do?
For another example, Article 20 of the draft stipulates that the company's senior managers have the duty of loyalty and diligence to the company. "Loyalty" is easy to understand, that is, executives are required not to eat more and occupy more, while "diligence" is difficult to take into account. How much work is diligent and how much work is lazy depends largely on the discretion of the judges.
For example, article 129 of the draft stipulates that the convening procedures, voting methods and contents of the general meeting of shareholders and the board of directors violate the provisions of laws, administrative regulations or the company's articles of association, and shareholders may request the people's court to cancel the resolution or deem the resolution invalid within a certain period of time. Obviously, this is a typical clause of judicial intervention in the internal affairs of the company. It is easy to judge whether the convening procedure and voting method of the meeting are illegal, but it is not easy to judge whether the meeting content is illegal.
More difficult things are yet to come. Article 139 of the draft stipulates that if the board of directors of the company fails to perform its functions and powers or fails to perform its functions and powers, so that the company cannot continue to operate, the shareholders of the company may apply to the court, and the people's court will organize an extraordinary shareholders' meeting. It is a good idea that the court can preside over the shareholders' meeting, which can effectively avoid the deadlock of the company, but under what circumstances does the board of directors "fail to perform its functions and powers"? If a shopping mall is like a battlefield, should the board of directors be regarded as "failing to perform their functions and powers" if they wait and see. On the contrary, should the board of directors rush forward and act in a hurry be regarded as "performing its functions and powers"?
Judges are not businessmen. Businessmen often make judgments in the case of emergency and incomplete information, while judges make judgments in the case of complete evidence, so there is always a tendency to be wise after the event. In China, which lacks the tradition of precedent, how to maintain proper judicial intervention in corporate autonomy and respect the division of knowledge and experience between businessmen and judges is an important issue that must be considered in this revision of the company law.