In the economic composition of China, although the private economy is gradually growing, the state-owned component accounts for a considerable proportion. Today, the state-owned economy is still the most important factor affecting China's economic life [1]. In this sense, private ownership (private) companies cannot compete with state-owned enterprises (companies). Under the modern enterprise system, most state-owned enterprises exist in the form of limited liability companies or joint stock limited companies [2]. As for the operation of state-owned enterprises (companies), it is reflected in the management of state-owned shares. [3] Therefore, it is of great significance to study the management of state-owned shares. However, the research on state-owned shares in China is mostly manifested in economic research, such as the reduction price of state-owned shares and the circulation of state-owned shares. How to study the legal management of state-owned shares? This also involves many problems, from the macro state-owned equity management system to the micro state-owned equity rights and obligations, from the acquisition of state-owned equity to the transfer of state-owned equity, and so on. This paper only discusses the grass-roots state-owned equity management institutions and their functions and the acquisition of state-owned equity in law, and puts forward some shallow understanding of some problems in practice.
I. State-owned equity management institutions and their functions
(A) the determination of state-owned equity management institutions
The management of state-owned shares first involves its management institutions. According to the current legal norms, the state-owned equity management institution is the state-owned assets supervision and administration institution. Article 6 of the Provisional Regulations on Supervision and Administration of State-owned Assets of Enterprises (Order No.378 of the State Council, May 27, 2003) stipulates that the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, and the people's governments of cities divided into districts and autonomous prefectures shall set up state-owned assets supervision and administration institutions respectively. The state-owned assets supervision and administration institution shall, according to the authorization, perform the responsibilities of the investor and supervise and manage the state-owned assets of enterprises according to law. With the approval of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, cities and autonomous prefectures divided into districts with less state-owned assets of enterprises may not set up separate state-owned assets supervision and administration institutions. [4]
The establishment of state-owned assets supervision and administration institutions conforms to China's current political and economic system. Deepening the reform of the state-owned assets management system proposed by the 16th National Congress of the Communist Party of China requires the state to formulate laws and regulations, and establish a state-owned assets management system in which the central government and provincial, municipal and local governments perform the investor's duties on behalf of the state, enjoy the owner's rights and interests, unify the rights, obligations and responsibilities, and combine the management of assets with the management of people and affairs. At the level of institutional reform, it is required to set up state-owned assets supervision and management institutions, to ensure that the establishment and operation of state-owned assets supervision and management institutions in the State Council and at the provincial, municipal and local levels can be carried out from top to bottom according to law, and to promote the smooth progress of institutional reform. [5]
From a historical perspective, the determination of state-owned equity management institutions in China is constantly changing with the process of China's economic system reform. The evolution of state-owned equity management institutions can reflect the reform of state-owned assets management system in China. Before the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises determined that the state-owned assets supervision and administration institution was the state-owned equity management institution, the Ministry of Finance was once the state-owned equity management institution. The Notice of the Ministry of Finance (Caiqi [2000] No.200) entrusts the management function of state-owned shares of local shareholder units to the financial departments at the provincial level (including cities with separate plans) according to the principle of state ownership and hierarchical management, while the central units (relevant departments in the State Council or central management enterprises) manage state-owned shares and issue foreign shares (B shares, H shares, etc.). ) and state-owned shares to raise funds. As well as the transfer, transfer, pledge, guarantee and other state-owned equity management functions of state-owned legal person shares of local shareholder units. , exercised by the Ministry of Finance. [6] Before the Ministry of Finance, the state-owned assets management department was the management institution of state-owned shares. The Notice of the State Administration of State-owned Assets on Standardizing the Management of State-owned Equity of Limited by Share Ltd (Guo Zi Qifa [1996] No.58) gives the functions of state-owned equity management to the State Administration of State-owned Assets and local state-owned assets management departments respectively. [7] As early as1March 1994 1 1 day, the State Administration of State-owned Assets "Implementation Opinions on the Management of State-owned Equity in Joint-stock Pilot Enterprises" (Guo Zi Fa [1994] No.9) identified the full-time institutions of state-owned equity management as state-owned asset management departments at all levels. [8]
It can be seen that the state-owned equity management institutions change very frequently, and they do not inherit from each other. This is not conducive to the development of state-owned equity management. But it should be noted that this does not mean that the legal norms related to the management of state-owned shares will not be inherited. On the contrary, although the state-owned equity management institutions are constantly changing, the legal norms related to the state-owned equity management have not lost their effectiveness because of the changes in the management institutions. The legal norms related to state-owned equity management issued by the former state-owned equity management institutions are still valid when they are not state-owned equity management institutions. For example, the Notice of the Ministry of Finance on Issues Related to the Property Rights Change of State-owned Shares of Listed Companies (Caiqi [2002] No.395) and the Notice of the Ministry of Finance on Issues Related to the Management of State-owned Shares of Joint Stock Limited Companies (Caiguan Zi [2000] No.200) are still valid before they are abolished, and the management of state-owned shares must be followed.
According to the Company Law, a company may not purchase shares of the company. However, except for one of the following circumstances:
(1) Reduce the registered capital of the company.
(2) Merging with other companies holding shares of the Company;
(3) Rewarding shares to employees of the Company;
(4) Shareholders request the company to purchase their shares because they disagree with the resolution of merger or division made by the shareholders' meeting.
Where a company purchases shares of the company due to items (1) to (3) of the preceding paragraph, it shall be decided by the shareholders' meeting. After the company has purchased its shares in accordance with the provisions of the preceding paragraph, it shall be cancelled within 10 days from the date of acquisition in case of the first circumstance;
Therefore, shareholders can withdraw their shares through the company's share repurchase and reduce their registered capital.
Yes, the company's reduction of registered capital must be approved by shareholders representing more than two-thirds of the voting rights.