According to the statistics of the motions of the First Session of the Tenth National People's Congress held in March, there were about 10 motions on amending the Company Law and the Securities Law. According to the minimum requirement of at least 30 deputies to each motion, more than 400 deputies shall submit the motion. Wang Wenjing, Chairman of UFIDA Software, signed a motion with nearly 100 delegates.
During the two sessions this year, more than 30 NPC deputies, including Wang Wenjing, chairman of UFIDA, submitted a proposal to amend the Company Law to the National People's Congress. This proposal has been put forward many times, because some key issues are controversial and the company law has not been amended.
What prompted these representatives, as well as some experts and scholars, to demand such a strong revision of the company law?
Wang Wenjing and other representatives pointed out in the motion that the promulgation of China's current company law and its minor amendments has played an important and positive role in improving corporate governance and promoting the development of market economy. However, with the development and changes of China's economy and enterprises, some provisions in the current company law have obviously failed to meet the needs of companies and economic development, and even restricted development. For example, the paid-in capital system restricts the establishment of the company option system; The cumulative foreign investment shall not exceed 50% of the company's net assets, which limits the company's investment and the development of the holding company; The scope of the company's stock repurchase regulations is too narrow, which affects the company's equity management. In this regard, there are many opinions and suggestions from the business, legal and theoretical circles.
It is reported that the revision of the company law has been included in the legislative research plan of the Ninth National People's Congress, but it has not yet been completed. It is suggested that the Tenth National People's Congress should include the revision of the company law in the legislative plan as soon as possible and complete the revision as soon as possible. The legislative proposals put forward in this bill are to modify the existing paid-in capital system and promote the establishment of company options and other systems; Relax the restrictions on companies' foreign investment, encourage companies to invest, and promote the development of holding companies; Expand the scope of the company's share repurchase in order to facilitate the strategic management of equity. The proposal was signed by more than 30 delegates. Mainly representatives of business, education and party and government departments.
Lawyer Fang Dequan of Beijing Zhongji Law Firm introduced two cases to the reporter. Company A has a trade relationship with Company B, and Company A owes Company B RMB 200,000. A year later, after many attempts, Company A filed a lawsuit in court. As a result, Company B was revoked its business license six months ago, and the court refused to accept it. The court's rejection is not unreasonable, but if shareholders use the company to engage in illegal activities or set up a company for illegal purposes, in this case, they still blindly safeguard the independence of the company and the limited liability of shareholders, which runs counter to the purpose of creating a company by law. The legitimate rights and interests of creditors will not be protected.
Revocation of business license has become an effective means for shareholders to legally evade debts. Because the law does not stipulate the civil liability that the company should bear after its business license is revoked, and it does not give the court the substantive examination power to revoke its business license, it is difficult to deal with the dispute of evading debts in the name of revocation in practice, and the company's creditor's rights have also been seriously violated. In particular, China's current laws do not stipulate that shareholders of companies whose business licenses have been revoked may not re-establish their business within a certain period of time, which leads to the widespread situation that shareholders whose business licenses have been revoked operate in different places. The existence of this phenomenon not only fails to protect the interests of creditors, but also damages the social and economic interests to some extent.
Another case also shows that according to the current company law, there are contradictions that cannot be solved. Li, a shareholder of a limited liability company, died in a traffic accident in 2006 1 month. After he divorced his ex-wife, only one son, Li Moumou, went to college in other provinces. After learning the news of his father's death, Li Moumou sued the people's court on the grounds of inheriting his father's property in a limited liability company. Because Li was studying abroad and unwilling to participate in the company's operation, he requested the people's court to order the transfer of Li's shares to other shareholders and the transfer of cash to himself.
Li Can's shares in a limited liability company were inherited by his son and qualified as shareholders? China's current Company Law does not define the nature of equity inheritance. However, the company law of our country prohibits shareholders from withdrawing their capital contribution after the company is registered, so if other shareholders are unwilling to buy the shares of the deceased shareholders, the heirs can neither obtain the status of shareholders nor get the property they should inherit, which can not protect the legitimate rights and interests of the heirs well in law.
These two cases are just the tip of the iceberg.
In an interview with China Economic Times, Shanghai Haohua Law Firm and Qiu Ren Yang Baochun said that the Company Law has been promulgated and implemented for nearly 10 years, and it has been revised continuously during this period. However, it was promulgated at the early stage of the establishment of the market economy and has been out of touch with the real economic life. The Supreme Court has a comprehensive judicial interpretation of important laws, but there is no comprehensive judicial interpretation of such important laws as the company law.
Yang Baochun told this reporter that one of the main purposes of China's paid-in capital system and strict restrictions on the way of capital contribution is to protect the interests of creditors. However, the company law has too many restrictions on capital contribution, especially on intangible assets. But some companies are called companies, but they are actually partnerships, or the boundaries between company assets and family property are unclear. If their investors also bear limited liability, it will harm the interests of creditors. Our country only has common stock but no preferred stock, which can't meet the actual needs. China has strict restrictions on companies to buy back or hold their own shares, which is not conducive to enterprises to establish incentive mechanisms and absorb venture capital. However, the insufficient protection of minority shareholders' rights and interests and the abuse of litigation rights by minority shareholders have also become a pair of contradictions.
Starting from the reality of China and drawing lessons from international experience, the new Company Law will improve China's company law system, further adapt to the requirements of the market economy system, effectively enhance the competitiveness of China companies, and promote the healthy development of China economy and the world economy.
First of all, the new company law further strengthens the company system and encourages and promotes the establishment and development of companies. It has been improved in six aspects: reducing the registered amount of the company, expanding the scope of capital contribution, stipulating that the monetary contribution ratio can only reach 70% of the registered capital of the company, liberalizing the restrictions on the company's foreign investment, retaining the way of establishing a joint stock limited company, and determining the legal status of a one-person company with only one natural person shareholder or corporate shareholders.
Second, the new "Company Law" has been revised and improved in order to run through the company's philosophy, improve the company's structure, and improve the company's operational efficiency. It is clearly stipulated that a company as a legal person has independent corporate property and enjoys corporate property rights, and the company is liable for its debts with its property. Shareholders play a major role in the company's operation, and the company's property rights will be recovered after dissolution and liquidation. 2. The legal representative of the company shall be determined by the articles of association, and the legal representative of the company may be the chairman or manager according to the provisions of the articles of association. Third, the efficiency stipulated in the company's articles of association takes precedence. For example, the shareholders of a limited liability company can agree to share the rights according to the share of shareholders, and can decide whether the legal heir inherits the shareholder qualification through the articles of association. Fourth, every shareholder who has the right to vote at the shareholders' meeting can have the right. Fifth, the new company law strengthens the restrictions on the rights of the chairman and refines the power of the shareholders' meeting. Sixth, it is stipulated that listed companies should have independent directors, and the specific measures shall be formulated by the State Council. Seventh, strengthen the obligations of directors, supervisors and other senior managers to the company. Directors, supervisors and managers who violate the laws or the articles of association shall be liable for compensation. Eighth, if the directors of the company violate the law or the articles of association when implementing the company's decision, the shareholders may bring a lawsuit to the people's court to effectively protect the interests of the shareholders.
Third, the new company law has further improved the protection mechanism of the legitimate rights and interests of the company's shareholders and related parties, protected investment and maintained a fair social and economic order. The new company law refers to foreign common laws and regulations, giving minority shareholders the right to consult the company's account books. Second, the company has been profitable for five consecutive years and does not distribute dividends. If a shareholder disagrees with the company's decision of merger, division, transfer of major property and not dissolution of the company, he may require the company to purchase its equity at a reasonable price. Third, there are difficulties in the operation and management of the company, and the interests of shareholders have suffered heavy losses, which cannot be solved by other means. If the company is deadlocked and difficult to operate, 65,438+00% shareholders can bring a lawsuit to the people's court.