1. Shareholders' meeting and shareholders' meeting
A company limited by shares is composed of shareholders' meeting, which is the highest authority of the company. The differences and connections between shareholders' meeting and shareholders' meeting are as follows:
(1) Temporary meetings and regular meetings
Similarities: both joint-stock companies and limited companies have regular shareholders' (large) meetings and temporary shareholders' (large) meetings.
Difference:
1, joint-stock company
According to the Company Law and the Standard Opinions on Shareholders' Meetings of Listed Companies, shareholders' meetings are divided into annual shareholders' meetings and extraordinary shareholders' meetings. The annual general meeting of shareholders shall be held once a year within six months after the end of the previous fiscal year. According to China's accounting system, the accounting year is generally from 1 to 1 on February 3 1 day. Therefore, the annual general meeting of shareholders is usually held.
The annual general meeting of shareholders may discuss any matters stipulated in the articles of association. At the annual general meeting of shareholders, shareholders who individually or collectively hold more than 5% of the total voting rights of the company or the board of supervisors may put forward interim proposals.
A joint stock limited company holds an extraordinary shareholders' meeting: the number of directors is less than 2/3 of the number stipulated in the company's articles of association, the uncompensated loss reaches 65,438+0/3 of the total share capital, and the shareholders hold more than 65,438+00% of the company's shares. The board of directors thinks it is necessary, and the board of supervisors proposes to hold a meeting.
The extraordinary shareholders' meeting can only vote on the matters listed in the notice of the shareholders' meeting. That is, the extraordinary shareholders' meeting shall not propose an interim motion.
2. Limited company
According to the company law, regular meetings of a limited company shall be held in accordance with the articles of association. Propose to convene an interim meeting: Shareholders representing more than one quarter of the voting rights and more than one third of directors or supervisors may propose to convene an interim meeting.
(2) Notice of the meeting
1 The shareholders' meeting shall be convened by the board of directors and presided over by the chairman in accordance with the provisions of the Company Law. When the chairman is unable to perform his duties due to special reasons, the vice chairman or other directors designated by the chairman shall preside over it. When convening a general meeting of shareholders, shareholders shall be informed of the matters discussed at the meeting 30 days before the meeting. According to the Guidelines for the Articles of Association of Listed Companies, the company shall not count the day of the meeting when calculating the 30-day starting period. Matters submitted to the meeting for deliberation according to the Guidelines for the Articles of Association of Listed Companies; Explain in obvious words: all shareholders have the right to attend the shareholders' meeting, and may entrust an agent to attend the meeting and vote, and the shareholder agent need not be a shareholder of the company; Shareholders who have the right to attend the shareholders' meeting on the registration date; Time and place of service of the power of attorney; The name and telephone number of the permanent contact of the meeting.
[Case1] 20001October 23rd, 165438+ A listed company published an announcement in china securities journal, pointing out that the company will hold the second extraordinary shareholders' meeting in 2000 at 9:00 am on February 22nd, 2000 in a building. The contents of the meeting are as follows (omitted). After the transaction ended in the afternoon of June 5438+February 65438+May 2000, the company's shareholders, directors, supervisors and senior managers registered with Shanghai Securities Central Clearing Company. "The registration method, registration place and contact number of the conference were clearly announced. The notice of the meeting was issued in the name of the company's directors. The announcement said the time was165438+1October 2 1. 65438+February 19, 2000 (that is, the time for shareholders' registration determined by the meeting was before 65438+February 22), a shareholder objected to the company, pointing out that the notice period of shareholders' general meeting was only 29 days (from 65438+February 22), which was not in line with Article 47 of the Guidelines for the Articles of Association of Listed Companies. The management of the company thinks: 1, the notice period should be calculated to the date of the meeting (65438+February 22). 2. The release date stated in the announcement of the board meeting is165438+1October 2 1, which is over 30 days, and there is no illegal period; 3. Even if the notice period is illegal, it is only a small flaw, which has little impact on shareholders' rights and interests. There is no need to declare the resolution of the shareholders' meeting invalid. Therefore, the two sides have disputes.
This case involves the notice of shareholders' meeting. The notice of shareholders' meeting is the premise for shareholders to attend the shareholders' meeting and exercise the legal "right to interfere". As far as the above cases are concerned, does procedural violation necessarily lead to entity invalidation?
2. A limited liability company shall notify the shareholders' meeting 15 days before the meeting, and the calculation method of 15 days is not specified.
(3) The resolution was passed.
Resolutions are divided into ordinary resolutions and special resolutions;
1, joint-stock company
According to the Company Law and the Guidelines for the Articles of Association of Listed Companies, the following matters are passed by ordinary resolutions at the shareholders' meeting:
Work reports of the board of directors and the board of supervisors; Profit distribution plan and loss compensation plan drawn up by the board of directors; Appointment and removal of members of the board of directors and the board of supervisors and their remuneration and payment methods; The company's annual budget plan and final accounts plan; Annual report of the company; Other matters other than those required by laws, administrative regulations or the Articles of Association to be passed by special resolutions.
The following matters shall be passed by a special resolution at the shareholders' meeting:
The company increases or decreases its registered capital; Issuing corporate bonds; Division, merger, dissolution and liquidation of the company; Amend the Articles of Association; Buy back shares of the company; Other matters that need to be passed by special resolution and decided by ordinary resolution in the general meeting of shareholders as stipulated in the Articles of Association, which have a significant impact on the company.
Third, the board of directors.
Similarities: The board of directors of a limited company and a joint-stock company are both decision-making and executive organs of the company, which play an important role in the company's operation and are responsible to the company's shareholders' meeting.
Difference:
The biggest difference between the board of directors of a joint-stock company and the board of directors of a limited company is that the joint-stock company has independent directors and secretary of the board of directors according to the requirements of the CSRC.
With regard to independent directors (all called independent external directors), the independent director system is a special requirement for listed companies. Article 49 of the Governance Standards for Listed Companies stipulates: "A listed company shall establish an independent director system in accordance with relevant regulations. An independent director shall be independent of the company in which he works and its major shareholders. Independent directors shall not hold any positions other than independent directors in listed companies. " China Securities Regulatory Commission's Guiding Opinions on Establishing Independent Director System in Listed Companies (hereinafter referred to as Guiding Opinions) specifies the qualifications, requirements and responsibilities of independent directors in detail. According to the provisions of the Guiding Opinions, independent directors and their employees shall, in principle, serve as independent directors in five listed companies at most, and ensure that they have enough time and energy to effectively perform their duties as independent directors. A listed company shall employ appropriate personnel as independent directors, including at least one accounting professional (accounting professional refers to a person with senior professional title or certified public accountant qualification). Before June 30, 2002, there should be at least two independent directors in the board of directors. Before June 30, 2003, there should be at least one third of independent directors in the board of directors of listed companies. Your board of directors has nine members. By June 30, 2003, there must be at least three independent directors who meet the above requirements.
Article 5 of the Guidance stipulates that independent directors shall enjoy the following special powers with the consent of more than half of all independent directors: 1. Major related party transactions (referring to related party transactions that the listed company intends to reach with related parties with a total amount of more than 3 million yuan or accounting for more than 5% of the latest audited net asset value of the listed company) shall be approved by independent directors and submitted to the board of directors for discussion; Before making a judgment, an independent director may employ an intermediary agency to issue an independent financial consultant report as the basis for his judgment. 2. Propose to the board of directors to hire or dismiss an accounting firm; 3. Request the Board of Directors to convene an extraordinary general meeting of shareholders; 4. Propose to convene the board of directors; 5. Independently engage external audit institutions and consulting institutions; 6. Voting rights can be publicly solicited from shareholders before the shareholders' general meeting. If the above proposal of independent directors is not adopted or the above functions and powers cannot be exercised normally, the listed company shall disclose relevant information. The purpose of establishing independent director system is to strengthen the objective independence and impartiality of the board of directors in business decision-making and performance of corporate duties, which is conducive to protecting the interests of minority shareholders, thus further improving the governance structure of listed companies and promoting the standardized operation of listed companies.
2. In addition, according to the Interim Measures for the Administration of the Secretary of the Board of Directors of Listed Companies and the Measures for the Administration of the Secretary of the Board of Directors of Listed Companies of Shanghai Stock Exchange (for Trial Implementation), listed companies have a secretary of the board of directors. The secretary of the board of directors is a senior manager of the company and is responsible to the board of directors. The relevant provisions of laws, regulations and articles of association on the senior management of the company are applicable to the secretary of the board of directors.
(1), the qualifications of the secretary of the board of directors
A: The secretary of the board of directors should be a natural person with a college degree or above who has been engaged in secretarial, management and equity affairs for more than three years and is not less than 25 years old. The secretary of the board of directors should master (or be trained to master) professional knowledge in finance and taxation, law, finance and enterprise management, have good personal qualities, strictly abide by relevant laws and regulations and professional ethics, be able to faithfully perform their duties and have good communication skills.
B: The secretary of the board of directors may concurrently serve as a director of the company. However, if a director and the secretary of the board of directors exercise their respective functions and powers, they may not concurrently serve as the secretary of the board of directors of the company.
C: Accountants of accounting firms and lawyers of law firms hired by the company shall not concurrently serve as secretary of the board of directors.
(II) Responsibilities of the Secretary of the Board of Directors
(1) Preparing and submitting reports and documents of the board of directors and shareholders' meeting required by relevant state departments according to law;
(2) Preparing the board of directors and shareholders' meeting, keeping minutes of the meeting and keeping the meeting documents and records;
(3) Being responsible for the company's information disclosure according to law, and ensuring the timeliness, legality, authenticity and integrity of the company's information disclosure;
(4) Assisting the board of directors to earnestly abide by the relevant national laws, regulations, the Articles of Association and the relevant rules and regulations of this Exchange when exercising their functions and powers, and raising objections in time when the resolutions of the board of directors violate the laws, regulations, the Articles of Association and the relevant provisions of this Exchange, so as to avoid bringing losses to the company or investors.
(five) to provide legal aid, consulting services and decision-making suggestions for major decisions of the company;
(VI) Preparing publicity activities for the company's promotion at home and abroad;
(7) Handling related matters between the company and directors, securities management departments, stock exchanges, intermediaries and investors;
(8) Keeping the register of shareholders and the seal of the board of directors;
(9) Other matters authorized by the board of directors.
Fourth, the board of supervisors.
1, the role of the board of supervisors of joint-stock companies. The board of supervisors is the company's supervisory body, which exercises supervisory functions on behalf of the shareholders' meeting and has checks and balances with the board of directors. The board of supervisors has the right to comprehensively supervise the company's business activities and to inspect the company's finance, financial account books and other accounting materials; To supervise and correct the illegal acts of directors and managers in performing their duties; Attend board meetings as nonvoting delegates, raise questions and express opinions, and supervise whether the discussion methods and voting procedures of board meetings comply with laws and articles of association, and whether there is any situation that harms the interests of the company and shareholders. However, the board of supervisors generally does not directly participate in or interfere with the operation and management of the company, and its authority is embodied in supervision. Article 61 of the Governance Standards for Listed Companies stipulates that "a listed company shall take measures to protect the supervisors' right to know and provide necessary assistance for supervisors to perform their duties normally, and no one may interfere or obstruct them. The reasonable expenses required for supervisors to perform their duties shall be borne by the company. Article 62 stipulates that the supervisory records and financial or special inspection results of the board of supervisors shall be used as an important basis for evaluating the performance of duties of directors, managers and other senior management personnel. Article 63 stipulates: "The board of supervisors finds that directors, managers and other senior managers have committed illegal acts. Acts of laws, regulations or articles of association can be reported to the board of directors and shareholders' meeting, or directly to the securities regulatory agencies and other relevant departments. " At present, the power of the board of supervisors of companies in China is generally weakened or even ineffective, and it cannot play its due supervisory role. In order to improve the corporate governance structure of the company, balance the power within the company and guard against risks, it is necessary to strengthen the supervisory role of the board of supervisors.
2. Board of Supervisors of Limited Company
The company law has relatively general provisions on the board of supervisors of limited companies. According to Article 54 of the Company Law, the board of supervisors or supervisors shall exercise the following functions and powers:
(a) to check the company's finances;
(two) to supervise the directors and managers who violate laws, regulations or the articles of association when performing their duties;
(3) To require directors and managers to correct their actions when they harm the interests of the company;
(4) proposing to convene an extraordinary general meeting of shareholders;
(5) Other functions and powers as stipulated in the articles of association.
Supervisors attend board meetings as nonvoting delegates.
The board of supervisors of a limited company is not as detailed as that of a joint-stock company.