MBA课程dissertation—企业股东职权分析

按照现代企业公司法的规定，股东（大多数）会拥有对公司重大事项的决定权，处于公司最高权力机构的地位，但在实践中，股东会的这些职权并没有被真正行使，股东通过董事会间接对公司的重大事务作出了决策，股东会的职权在公司实务中逐渐被弱化。根据企业法第 40 条规定“代表十分之一以上表决权的股东，三分之一以上的董事，监事会或者不设监事会的公司的监事提议召开临时会议的，应当召开临时会议。”这是对召开有限责任公司临时股东会的程序条件所做出的规定，将提议权赋予了三类主体。然而，从实施情况来看，在这三项提议权中，董事提出的提议数量最多，但董事提出召开临时股东会提议的，往往都不是董事会在形成某项经营决策的提案后，主动地将该项内容提交股东会表决.

Introduction:shareholders' functions and powers, in the company practice, gradually weakened 简介:股东的职权,在公司实践中,逐渐削弱

 

In accordance with the provisions of company law in our country, the shareholder (large) will have major matters of the decisions of the firm is in the status of the company's highest authority, in practice, however, has not been true to exercise the functions and powers of the board, shareholders indirectly by the board of directors on company matters made a decision, in company with the authority of the board practice gradually weakened. 

 

(1) the authority to the board of directors of the shareholder's meeting 

 

1 the shareholders' committee with exercise their functions and powers of the board 

 

"Company law" article 40 regulation "the shareholders representing one over ten or more of the voting rights, more than one-third of the directors, supervisors or no board of supervisors of the supervisors propose for an interim meeting of the company, the convene an interim meeting." This is a limited liability company application conditions to the provisions of the provisional shareholders meeting, will propose power gives three kinds of main body. However, from the perspective of implementation of the right of three proposals, director of the proposal put forward by the largest number, but the directors propose for an interim shareholders propose, are not in the formation of a business decision by the board of directors after the proposal, will be the content submitted to the shareholders' committee vote voluntarily; Usually, when the board of directors to make a decision when put into execution, internal external organization needs to form the shareholders' committee resolution requirements, therefore, the shareholders' committee with exercise their functions and powers of the board. Basing on the condition of the company, however, the shareholders meeting resolution needs most is industrial and commercial management department, because the company often need to deal with all kinds of industrial and commercial registration of change, the company's articles of association of the revising is belong to the scope of their functions and powers of the shareholders' committee, but the articles of association of the records in the place of incorporation, business scope, operation period, some shareholders the basic information of the change in the change of the decision, in the real world is determined by the board of directors, the shareholders' committee resolution related, often after the board makes a decision to change, as change of business registration and related materials, are not in accordance with the legislation on the design, the board makes a decision after such issues, require the board of directors. , for example, decisions about the company's shareholding modification of course belongs to the meeting of shareholders, but in reality, the shareholding modification must be carried out by the asset evaluation and property rights transaction is the board of directors is responsible for the work, therefore, choose to evaluate a company's assets in the accounting firm, and the choice of conduction property right trading assets management company, which originally belongs to the shareholders' committee decisions would be transferred to the board of directors, in the same way, related to the shareholders' committee resolution, is also the premise of assets evaluation report issued as a material, application of conduction property right trading and production, and there are considerable differences in their legal design intention. #p#分页标题#e#

 

2 shareholders will never rejected proposals to the board of directors 

 

The shareholders' committee of the board for consideration of proposals are basically agree, it is hard to find a veto. From the point of the reality, the shareholders' committee of the board of directors are usually not veto a bill in voting rate, even for the board of directors for the management policy decisions should be added, the temporary proposal of the shareholders' committee resolution, shareholders' voting rate is also high. 

 

(2) formalization of shareholders' meeting 

 

1, about the rules of the general meeting of shareholders 

 

General meeting of shareholders is composed of shareholders, is the authority of the company, and exercise control over the company. Shareholders through the general meeting of shareholders to the company to exercise control, mainly manifested in two aspects: one is electing and replacing directors. Appointment and removal of directors is the most basic system arrangement reflects the characteristics of corporate governance, the right to belong to who, who will in fact be the controller of the company. 2 it is to make important decisions for the company that determine the company's management policy and investment plan; The review reports of approval of the board of directors and board of supervisors; The company's annual financial budget, decision scheme, allocation and company benefit plans to cover company losses; Increase to the company, reduce its registered capital, the issuance of company bonds, corporate merger, division, dissolution and liquidation matters as a resolution; Modify the articles of association, etc. And general meeting of shareholders is co., LTD will set FeiChangShe authority. According to the provisions of article 102 of the company law in China, the general meeting of shareholders for co., LTD. Must be set up by the government. It as the highest mean decision organ co., LTD., according to the functions and powers stipulated by the regulations of the company, can make a resolution for the major issues of the company operating. General meeting of shareholders is composed of all shareholders. Shareholders of a company limited by shares, the holders of shares co., LTD. Mainly from the following people: one is the promoter of a company limited by shares, the subscription shares in accordance with the law, after its establishment, the company that will become the shareholders of a company; 2 it is in the subscribers in the process of establishing the company, due to its subscribe for the shares of the company, the company after the establishment has become the shareholders of a company; Three is the subscribers company issuing new shares, due to its subscribe the shares of a company new happened, after the program has become shareholders in the ipo. To maintain all the interests of the shareholders, to prevent big shareholders of dictatorial and arbitrary, company law confirmed that company for the rights and obligations of shareholders should be given equal treatment, namely shareholders equality principle. In other words, the company does not discriminate against any one shareholder, and ensure the shareholders in proportion to their have similar shares equally enjoy rights and assume the obligations. In reality, the company's shareholders' meeting, especially a limited liability company, whether regular meetings or interim meetings, is just a form, but didn't really as the organization form of the shareholders' committee decision. #p#分页标题#e#

 

2 will convene in the company law, procedure and the way of the resolution of relevant resolutions of the shareholders' general meeting program as its important content detailed provisions, the purpose is to prevent the improper application of undue damage to the shareholders' interests. In other words, the convening of general meeting of shareholders must abide by the relevant provisions of company legislation, resolution by the shareholders' meeting, its contents shall not violate the relevant laws, regulations and the articles of association. Especially under the condition of the separation of stock ownership and corporate control, the company operating more false directors, managers, directors, managers and other power, has a strong management and shareholders are not directly involved in the company, in this way, the general meeting of shareholders often manipulation by management. In real life, often appear some non-standard conditions, for example, actually did not open the shareholders meeting, just on paper as open them a shareholders' meeting; According to the relevant provisions, each to a vote at a voting shares, but some of the general meeting of shareholders, while attend the meeting on behalf of all have a vote, but how many shares, representing the statistics. After the vote, in not to attend the meeting, the number of the board of directors, on behalf of the number of shares, in favor of the vote, against the votes, such as Numbers, has announced that passed all the resolution. Thus, because of various reasons, the resolution of the shareholders' meeting may be illegal in the program, or may be defective, or is in content goes against the laws, regulations or the articles of association. These do not conform to the laws, regulations or the articles of association, will be for the company, shareholders, lead to a certain degree of adverse consequences. 

 

3 the binding of the shareholders meeting resolution requires its program and content must comply with the provisions of the law or the articles of association, or the resolution can be revoked by flaws, alteration or confirmed as invalid. The shareholders meeting resolution flaws because of the program or content in violation of the law or the articles of association. Application flaw is refers to the formation of the shareholders meeting resolution by program was flawed. Will convene in the company law, procedure and the way of the resolution of relevant resolutions of the shareholders' general meeting program as its important content detailed provisions, the purpose is to prevent the improper application of undue damage to the shareholders' interests. Due process can cause the rights for shareholders actually enjoy, corporate obligations to implement. Lead to the shareholders meeting resolution flaw form mainly has: 

 

(1) the host has no right to host or in violation of the rules of procedure. As stated earlier the macro wisdom technology co., LTD, chairman of the board of directors "enter not wang dong" hosted by the shareholders meeting and presided over another temporary general meeting of shareholders, created a "double" general meeting of shareholders. The moderator in violation of the rules of procedure make shareholders cannot continue, more than half of the field attends the shareholders' voting shareholders agree, general meeting of shareholders can elect one person as the moderator, continue our meeting. #p#分页标题#e#

 

(2) in violation of the requirements of resolution. Such as in violation of the principle of capital majority to form a resolution of the shareholders' general meeting. Our country "company law" the one hundred and fourth regulation, a resolution of the shareholders' general meeting, must by more than half of the voting rights held by the shareholders present at the meeting. However, the general meeting of shareholders to modify the articles of association, increase or decrease of the registered capital of the resolution, and the company merger, division, dissolution or change of corporate form of resolution, must be present at the meeting by more than two-thirds of the voting rights held by the shareholders. 

 

(3) the exercise of shareholders' voting rights of the restricted voting rights. Our country "company law" the one hundred and fourth regulation, the company held by the company's shares have no voting rights; Article 16 regulations, the company shareholders or actual controllers provide guarantee for the company, must by the shareholder meeting resolution. The shareholder specified in the preceding paragraph or the shareholder dominated by the actual controller specified in the preceding paragraph shall not vote on the matters as mentioned in the prescribed in the preceding paragraph. The vote by other shareholders present at the meeting by more than half of the voting rights held by the pass. 

 

(4) the content of the resolution, in violation of the provisions of the law or the articles of association. According to our country "company law" regulation, co., LTD., the shareholders meeting has decided to the company's operating guidelines and investment plans; Electing and replacing directors, a decision about the directors remuneration; The company a resolution issues such as merger, division and dissolution; Modify the articles of association, etc, so the content of the resolution in violation of the company law of the provisions of the general meeting of shareholders the permissions can lead to the invalid. 

 

(5) voted by misleading information. To be present at the meeting to vote on the beneficiary of the shareholders shall be fully detailed disclosure obligation. The company's chairman, director, supervisor or President and other senior management personnel in the shareholders' meeting of the shareholders shall be inquiry is explained and advice and instructions, except there are the following situations: 1) inquiry problem has nothing to do with the topic; 2) inquiry issue involves matters is yet to be verified; 3) inquiry issue involves the company business secret; 4) answer inquiries will lead to a violation of fair information disclosure obligations; 5) other reasonable reason. If present at the meeting of the shareholders according to the company's management provide inadequate or even misleading information, which voted for the resolution of the shareholders' general meeting items, afterwards, even if they can prove that the proposed vote when a misunderstanding or even misleading, also cannot directly withdraw its approval. In foreign countries, often, the shareholders are often to be chairman of the board of directors regarding the question explanation of to participate in the vote. If there is evidence that the chairman of the board of directors and other relevant persons responsible explanation is unclear, or its explanation just repeat the work report and no difference, perfunctory, asking questions to shareholders or a scratching his head after listening to his explanation or more confused, and so on, to attend the meeting of the shareholders can be misguided to vote on the grounds that they filed for revocation of the resolution of the shareholders' general meeting. #p#分页标题#e#

 

(6) shareholders at the shareholders' meeting on the exercise of power is restricted or interference. As shareholders rejected due to no registration to attend the general meeting of shareholders, or due to not register a rejection, etc., are all shareholders exercise of power is restricted or interfere with the performance, overseas experience can be filed for a court to issue to stop the continuation of the ban, the general meeting of shareholders or by its listed on the stock exchange to decide whether to let its shares were suspended (such as listed on the Hong Kong united securities exchange in northwestern China XXX company, for prevent failed to register in advance to attend the meeting of the shareholders present at the meeting by the Hong Kong stock exchange trading halts, the Hong Kong stock exchange that the behavior of listed companies at the risk of obstruction of shareholders exercise their functions and powers. 

 

The second board authority structure problems 第二次董事会权力结构问题

 

In the corporate governance structure, the board of directors is the company's business actuators, with enforcement of business and management decision-making. From the actual situation, the company's board of directors in the exercise of executive power business and management in the process of decision-making, the redistribution of power there are still some problems. 

 

(a) the difference between the functions and powers of the board of directors and the duties 

 

In accordance with the company law, prior to the revised scope of power difference between the chairman and general director, general director only attend and participate in the voting power, the board of directors, the chairman of power far greater than other directors, resulting in abnormal function, chairman, do everything, the board of directors can be evaded, in fact not and supervision, chairman of the board of directors, but instead of the board chairman in charge. In addition, the functions and powers of the board of directors became the chairman's functions and powers, this is not only back company law, the company's highest decision-making authority and executive power fully to one person, but also brings more business risk, will a company flourish the decline and fall with the company "leader" of personal ability and comprehensive quality bundled together. In view of the above, the new "company law" in the revision, the abolition of the chairman of the board of statutory privilege, chairman of the board of directors in addition to continue to reserve the right to convene and preside over the board meeting, the board with the other directors in the decision making in the same position. But, in reality, a limited liability company chairman of the board of directors of abuse of power or should happen, a decision by the board of directors of the real problem is still not fully resolved, one of the most typical is the use of the new "company law" has given the company autonomy, in the form of the company's articles of association, gave some power transfer to the chairman. I often contact in the company's practice to these phenomena, such as: the new "company law" in paragraph 3 of article 49 of the board of directors of the vote, the one man, one vote ", but the company's articles of association in the provisions of the voting procedure of the board of directors, but #p#分页标题#e#

 

Special provisions, when the board of directors voted in chamber and a veto vote impasse, with the same count of votes the chairman of the vote has the final decision, the ultimate authority granted to the chairman of the board of directors resolution matters. New "company law" article 42 regulation, such as: "a shareholders' meeting, all shareholders shall be notified before the 15th meeting." "Paragraph 1 of article 49 of the discussion methods and voting procedures of the board of directors, in addition to the prescribed in this law, shall be prescribed by the articles of association", the company's articles of association is only set for a meeting of the board to inform all directors, not clear the specific time in advance, so the chairman can draw on their influence on the company, the decision of every board meeting held at a time and place, with individual directors unable to attend the board meeting on time due to schedule conflict, or don't have enough time to prepare for the board of directors, etc., the resolution about the decision of the board of directors. Or: although the new "company law" has been the company's legal representative person scope expanded from the original one chairman to the chairman, executive director and manager, but in reality, companies often are used to continue to choose the chairman is the legal representative of the company, so some chairman in the company certain laws, rules and regulations must be made by the legal representative of the behavior, beyond the scope of the authority of laws, regulations and the company's articles of association, of significant matters should be determined by the collective decision by the board of directors made the decision without authorization, based on the company's legal representative's identity and the protection of the third person in good faith, the chairman of the behaviors of this kind of behavior is seen as the company, external cannot deny is invalid, other directors can only reluctantly accepted. 

 

(2) the differences between the authority of the directors and managers 

 

According to the new "company law" regulation, the limited liability company, the manager shall be appointed or dismissed by the board of directors, so the manager's authority should be granted by the board, but the new "company law" also provides the manager's functions and powers; The new "company law" also stipulates that a limited liability company may have a manager, manager and the board of directors is almost parallel mechanism, rather than the employees of the company agent; Practice, general manager of the company are mostly by the chairman of the board or the director concurrently, as legislation and practice of this kind of factor, led directly to the reality of the manager, there exist deviations in understanding the nature and status of the confusion of board of directors and managers on battery power. And the distribution of power between the manager and the board is not very reasonable, the scope of authorization manager is too big, so that the superior agency by the board of directors of the leadership, not achieve dispersed, weaken the role of the manager's power. Directors and managers authority confusion phenomenon, the most typical is happened during the board meeting: first, the manager at the board meeting agenda reporting to all directors of the company's business situation, then, when the board of directors will discuss report content, is also the manager of the board members are still holds the role of the manager, according to the questions from the directors to make further explanation, in this case, the manager more embodies the company manager, will be temporarily as a director, to ensure that the board meeting can run smoothly. In the case of the manager and director, the board of directors collective decision-making also can barely keep; However, when the manager who is chairman of the board, the identity of the other directors due to its chairman, it is very hard to the identity manager reporting to the board to make the content to make scientific and reasonable decision, so the discussion methods often reduced to a collective decision by the board of directors in the form of "go through the motions". #p#分页标题#e#

 

(3) of the board of directors of authority structure forming causes of the problem analysis 

 

1, chairman of the legal status of misunderstanding 

 

Our country has a lot of number of limited liability companies and joint stock limited company is by state-owned enterprise restructuring, the state-owned enterprises is under the planned economy influence. In the period of planned economy, the state-owned economy and even the entire national economy is organized in accordance with the "social big factory" mode, the enterprise is that this kind of "social big factory" "shop", "team", all production and business operation activities are answerable to the government's plan instruction, enterprises formed the habit of only obey power obeyed not the voice of the market, the spread of bureaucracy in the enterprise. After state-owned enterprises restructured into a company, although the enterprise organization structure has changed, but did not change the thinking habits of people, especially our country such a ranking of so deep, changes in the situation more difficult. Enterprises in the process of production and business operation, after the restructuring within the enterprise is still hard to find a core power. Chairman of the board of directors is usually the legal representative of the company, has been regarded as the company's highest chief, companies of all size affairs to the chairman's command. This is the legal status of chairman misunderstanding. 

 

2 corporations legacy of reform 

 

In real life, many of the general manager of the company by the chairman of the part-time, its reason is a large part of the external representation of chairman should take certain internal business executive power as the foundation, the general manager of the company's internal governance also needs to have certain foreign power on behalf of the company. As for the manager to the expansion of power, also have to mention before the company system reform of state-owned enterprises, the factory director (manager) shall assume overall responsibility for the state-owned enterprises, in addition to retain some decision-making work of state-owned enterprises, the enterprise the management decision-making power, executive power, production control and external representation, are concentrated in the factory director (manager). Shall practise a system of the company, you need to by the shareholders' committee, the board of directors, the board which has been connected to an organization's leadership, in particular, to spread, and weaken the power of the manager. However, due to the influence of traditional ideas and the personnel system reform lag, the manager of the company is much by the original factory director (manager), or be appointed by the state authorities, not strictly abide by the provisions of the "appointed by the board of directors manager". Company manager was managing the power; Combined with the fact, appointed by the board of directors, responsible for the board of directors, and directly responsible to the shareholders, so that the board of directors is often raised, not for the manager to lead and supervise. #p#分页标题#e#

 

Still didn't get to carry out the three functions and powers of the board of supervisors 仍然没有得到贯彻执行的三个监事会的职权

 

New "company law" in the aspect of strengthening supervision function of the board of supervisors is, compared with the original system of board of supervisors, both in technical and rationality of the legislative, and operability, etc., have greatly improvement, from system design to exercise the supervision function provides a strong support of the board of supervisors. From national legislation, although the institutions of the oversight responsibilities of the board of supervisors appellation is different: some called the supervisors, sometimes called the board of supervisors, some referred to as the supervisory service, sometimes referred to as the auditor, sometimes referred to as accounting supervisor, but no big difference on essence and function. "look from our country company law, the board of supervisors is elected by the shareholders' committee, the performance of the supervision company business execution status and check the company's financial health authority. In theory, the board of supervisors mainly has the following value function: 

Conclusion结论
 

First, in order to protect the shareholders from the board gangsterism. As is known to all, the members of the board of directors usually have certain expertise and rich management experience, but the director is not necessarily a shareholder. No provisions of the company law of our country directors must be a shareholder. So, don't have the people in the board of directors, shareholders identity as an expansion of the power by the board of directors, their ability to properly protect the interests of the shareholders has become a real problem. Although our country "company law" article 4 stipulates that the shareholders "enjoys the beneficial right of the owners of the assets, making major decisions, and selecting its management power", article 103 of the "company law" article 38 and also made clear that the shareholders' committee and general meeting of shareholders shall enjoy the right of cases the decision to appoint and remove, personnel, listen to the report, such as the exercise of discretion QueRenQuan and finance authority. But in life, the company scale, especially joint-stock company scale is bigger and bigger, the increased number of shareholders, the majority shareholder of speculative phenomenon of shareholders, the shareholders are concerned about their investment in the stock market, rather than the company's operating performance, general meeting of shareholders can be evaded, shareholders and the shareholders' committee, the general meeting of shareholders is obviously impossible to effectively perform the supervision of company's business, to monitor the execution of business director. Is precisely based on this, the board of supervisors with stakeholders (shareholders) to the supervision, full-time instead of shareholders exercise the power of supervision of directors and the board of directors, as the boards to protect the interests of the shareholders, to prevent arbitrariness inevitably choice. Second, to protect the interests of the creditors, to prevent the happening of the damage the interests of creditors' behavior. According to the "company law" regulation, company limited by shares or limited liability company, shall bear the liability of all is have eyes, and the limited liability system at the expense of the premise of the interests of creditors. Any false records of the company's financial accounting is to deceive the creditor, actually reduce also directly to the creditors of the company's property in the back of a threat. Law for the benefit of the company creditors are fully protected, set up the board of supervisors system, supervision of the company's financial accounting situation, prevent the company from the occurrence of illegal ACTS. Enterprises in the process of corporate reform in our country, many companies, especially state-owned holding company wholly owned companies and countries, there are serious state shares and state-owned legal person share the absence of "shareholder" problem. Starting from the concept of ownership, in order to ensure state-owned shares of the company's absolute control, take it for granted to ensure state-owned shareholder (in fact, it is under a state of absence) election candidate to occupy the position of the corporate governance, including the board of supervisors, authority, will all companies, including supervision power by firmly grasp the in hand. Not only cost, small shareholders in the company involved in the possibility of company management and supervision and motivation, but also caused the lack of real assets represent in the company of the board of supervisors, board of supervisors that the company's operating and management benefit the lack of an inner deep relationship, they find it difficult to do like care about their personal assets to care about country or legal person's assets. The supervisors of the personnel system makes the design of the board of supervisors system failure. First of all, our country company the supervisors to produce, in addition to a wholly state-owned company of supervisors appointed by the state-owned assets supervision and administration department, general mainly comes from internal (including certain workers' representatives), and mainly comes from the chief executive will. In this case, the company's top decision makers and operators (chairman of the board of directors of the company, vice chairman of the board of directors, directors, general manager, etc.) with the company's board of supervisors are come from the same unit, had retained a residual, subordinate relationship. Before the subordinate relationship has not been fundamentally change, in a subordinate position in the original relationship between supervisors is difficult to decision makers for its superior company or operator bold exercise the supervisory authority, or he may not only lose the qualification of the supervisors, will make its interests in the original unit damage. As a result, the supervisors #p#分页标题#e#

 

Exemption mechanism of supervisors for exercising supervision and legislation could be affected by the interests of the violation due to guarantee under the premise of the exercise of supervision, especially as a supervisor of the employees of the exercise of supervision will not have any real meaning. Second, due to the supervisors are stakeholders in the launch is given priority to, a combination of supervisors without scientific collocation, understand management, good management, financial management, familiar with the policies and regulations of talents is not reasonable configuration, so that the supervision of all kinds of business in place. The functions and powers of the board of supervisors is not only power stipulated in the provisions of the company law of our country's inadequate, and rules 

 

Is the director of the board of supervisors and managers of behavior, passive supervision after the event. Such as regulation: the director of the board of supervisors, managers perform duties, violation of laws, regulations or the articles of association. Such provisions against constraints, director and manager's behavior.