The new Company Law has made significant improvements in strengthening the protection of shareholders' rights and providing a more comprehensive protection of shareholders' rights and interests. This is mainly reflected in the strengthening of shareholders' right to know, clearly stipulating that shareholders have the right to inspect and copy the company's articles of association, meeting minutes, financial and accounting reports and other documents, and can request to inspect the company's accounting books and vouchers, expanding the scope of shareholders' access to materials. In addition, the new law improves the procedures for shareholders to request the convening of an extraordinary shareholders' meeting, and further improves the provisions on shareholders' right to make temporary proposals. This will help to increase the enthusiasm of small and medium-sized shareholders to participate in corporate governance and strengthen the democratic decision-making of shareholders on the operation of the company. The interviewed industry insiders said that strengthening the protection of shareholders' rights is an important measure to implement and improve the property rights protection system, which is also conducive to optimizing the business environment, stimulating the vitality of the market economy, and promoting the high-quality development of the socialist market economy.
In general, the core content of shareholders' rights should include the right to benefit from assets, major decisions and the right to choose managers. The most direct embodiment of the right to income from assets is that shareholders receive dividends in accordance with the proportion of paid-in capital contribution or other ways stipulated in the articles of association, and in connection with this, when the company increases its capital, unless otherwise agreed in the articles of association, shareholders have the right to subscribe for capital contributions in accordance with the proportion of paid-in capital contributions.
In addition, in order to ensure the better exercise of shareholders' rights, the new Company Law also stipulates shareholders' right to know and the right to file lawsuits. Shareholders' right to know is an independent, inherent and instrumental basic right enjoyed by shareholders, and its institutional function is to bridge the information asymmetry between shareholders and company insiders, help shareholders obtain important information related to the company's operation, especially financial and accounting related information, and facilitate shareholders to exercise other rights. The reporter noted that the current "Company Law" has stipulated that shareholders have the right to file lawsuits against directors, supervisors and senior management directly and on behalf of the company. However, in fact, the premise for the effective exercise of shareholders' substantive rights and litigation rights is that shareholders can obtain effective information from the company, reduce the disadvantages of information asymmetry, and then improve their ability to present evidence. Therefore, shareholders' right to know, as an instrumental right, has become an important content that should be protected by law.
Lin Yiying, a cadre of the Economic Law Office of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, said that the revision of the "Company Law" has strengthened the equal protection of shareholders and made a series of amendments and improvements to strengthen the equal protection of shareholders in order to implement the requirements for equal protection of property rights put forward by the National People's Congress.
Lin Yiying said that the right to make major decisions and choose managers is mainly achieved through the exercise of voting rights. As the power organ of the company, the exercise of shareholders' voting rights determines the company's major matters and the formation of the will of the elected managers, and the convening, deliberation and voting of the shareholders' meeting are very important to ensure the formation of the company's will. Therefore, it is necessary to ensure that shareholders can participate in shareholders' meetings smoothly and conveniently, and participate in the company's decision-making when fully informed, so as to achieve democratic management. The way in which the shareholders' meeting is held and the right of shareholders to make proposals are of great significance to strengthen shareholders' participation in democratic management and supervision, especially in the dismissal of directors.
It is worth noting that the new Company Law proposes a new system design of dual shareholder representative actions, which aims to address some of the limitations of traditional shareholder representative actions. The first three paragraphs of Article 189 of the new Company Law stipulate that a single shareholder representative action shall be held by a single shareholder, and the fourth paragraph stipulates: "If the directors, supervisors or senior management of a wholly-owned subsidiary of the company have any of the circumstances specified in the preceding paragraph, or if others infringe upon the legitimate rights and interests of the wholly-owned subsidiary of the company and cause losses, the shareholders of a limited liability company and shareholders who hold more than 1% of the shares of the company individually or in aggregate for more than 180 consecutive days may, in accordance with the provisions of the preceding three paragraphs, request in writing the board of supervisors of the wholly-owned subsidiary, The board of directors files a lawsuit with the people's court or directly files a lawsuit with the people's court in its own name. ”
Although the current Company Law has provided for a shareholder representative litigation system, it is limited to shareholders who bring representative actions against the directors, supervisors and senior managers of the Company, as well as those who infringe on the interests of the Company. In the mother-child relationship, the subsidiary is financially part of the parent company, and when the interests of the subsidiary are damaged, the interests of the parent company will be indirectly damaged; The directors of the subsidiary are determined by the parent company, and the controlling shareholder of the parent company is likely to use the subsidiary to engage in related party transactions or hollow out the subordinate company, which harms the interests of the subsidiary and indirectly damages the interests of the parent company. When the parent company is the sole shareholder of the subsidiary, if the parent company does not file a lawsuit against the directors of the subsidiary, there is no legal remedy for the damage to the interests of the parent and subsidiary. Therefore, the fourth paragraph added in the new law is very important, and this system of dual representative actions for shareholders is the last line of defense for the protection of small and medium-sized shareholders in the operation of the enterprise group model. Through the recovery function of the dual representative action system, it can also play an effective deterrent role in the directors of subsidiaries who infringe on the interests of subsidiaries, which is conducive to the soundness and perfection of the corporate governance mechanism.
*: China ** News Author: Zhang Weilun.