As far as a joint stock limited company is concerned, the relationship between the board of directors and the manager is the same as that of a limited liability company. However, in the relationship between shareholders and the board of directors, joint stock limited companies have provisions on cumulative voting. For example, Article 105 of the Company Law stipulates that the shareholders' meeting may elect directors and supervisors according to the provisions of the articles of association or the resolutions of the shareholders' meeting, and the cumulative voting system may be implemented.
Analysis: the board of directors is responsible to the shareholders' meeting, which is clearly stipulated in the company law. In fact, it has been clearly stated that the board of directors represents all shareholders, not just some shareholders (such as major shareholders). But in reality, the board of directors is more representative of major shareholders.
On the one hand, according to the company law, whether the company implements the cumulative voting system is decided by the articles of association or the resolution of the shareholders' meeting, which means that the cumulative voting system is not mandatory, and it is difficult for the shareholders' meeting to pass the resolution of the cumulative voting system when the major shareholder can control the shareholders' meeting; On the other hand, laws on the protection of minority shareholders' rights and interests (especially procedural laws, such as insider trading punishment, group litigation and claims) are seriously lacking. This makes the rights and interests of minority shareholders often violated by major shareholders, board of directors and managers. According to the company law and other substantive laws, it is a "red line" to infringe on the rights and interests of minority shareholders, but due to the absence of procedural law, it is often difficult to pursue responsibility, especially civil liability. In other words, even if you step on the "red line", you may not be punished. To develop mixed ownership, state-owned enterprises need to introduce private capital, that is, the vast number of small and medium-sized investors. If we allow ourselves to be "fault-tolerant" and delay in perfecting relevant laws and regulations, especially procedural regulations, it will be difficult for the reform of mixed ownership of state-owned enterprises to succeed. In short, in the protection of the rights and interests of small and medium-sized investors, we cannot use "fault tolerance" as an excuse to infringe on the rights and interests of small and medium-sized investors unscrupulously.
In the relationship between the board of directors and the management, the board of directors is responsible for the strategic decision-making of the company and effectively supervises the management. At the same time, it is independently responsible for its own strategic decision-making mistakes, mistakes and regulatory failures. Managers are responsible for the board of directors, for the implementation of strategic decisions (that is, daily decisions) of the board of directors, and for their own actions.
In the strategic decision of the board of directors, the most important thing is to select and hire a competent and upright general manager. If the board of directors cannot appoint the general manager independently, no one will bear the responsibility of choosing the wrong general manager, because the company law does not stipulate that any subject other than the board of directors (such as shareholders and the government) should bear the responsibility of choosing the wrong general manager. Even if someone takes responsibility, it will be "better late than never" because they are far away from the decision-making and supervision site, and it is difficult for the responsible party to bear the losses already caused.
In the reality of state-controlled limited liability companies and joint stock limited companies, it is not a small probability event for a major shareholder or government to appoint a general manager beyond the board of directors. Although people are often recommended, the probability of candidates being approved by the board of directors is 100%, which is no different from direct appointment. According to the company law, this has crossed the "red line" and the board of directors has no chance to "try and make mistakes". Without "trial and error", there is no "fault tolerance". Although this appointment system has crossed the "red line", few people bear the responsibility of choosing the wrong person. Even if someone takes responsibility, it may be at the expense of the huge loss of state-owned assets.
According to the company law, the general manager is elected by the board of directors. However, the provisions of the Company Law on the independent rights and responsibilities of the general manager are rather vague. It is not difficult to find a common phenomenon in reality that the chairman is regarded as the "number one" of the company. One result of this practice is that the chairman has become a manager, who can fully participate in the independent decision-making of the general manager in daily affairs. However, when there is a mistake or mistake in the decision-making, the chairman can shirk the responsibility and think that this is the power of the general manager. This will undoubtedly seriously affect the general manager's independent exercise of power and independent responsibility, which will eventually lead to unclear responsibility. For state-owned enterprises, there will be a huge risk of loss of state-owned assets. Here, the "fault tolerance" of state-owned enterprise reform is not ultra vires, but clear powers and responsibilities.