The Research On The Legal Regulation Of Corporate Donation

In recent years company donation has developed swiftly and violently in practice in our country, however in this context there are many problems need calm thinking such as how to properly coordinate interest conflict initiated by company donation, how to establish the standard of appropriateness judgement of corporate donation and how to restrict manager's behavior in corporate donation and so on. In this paper the basic train of thought is that the premise to scientific design company donation's legal regulation system is to have a rational analysis of corporate donation's legitimacy basis and behavioral attributes and a reasonable explanation of relationship between corporate donations and corporate profit.The full text is divided into nine parts:The first part is introduction. This part introduces the origin of company donation legal regulation, research purpose, research methods and the research status and so on, at the same time define the main concepts and research fields in this paper. The legitimacy of political donations, religious donations should not be admitted in theory in our country, therefore this article only studies the company's charitable donation. The main purpose of this paper is to improve the company donation government system, therefore this paper discusses corporate donation legal regulation mainly from the angle of company law regulation.The second part discusses the necessity and status of company donation legal regulation. In recent years the corporation social responsibility movement's development and corporate philanthropy strategy theory's application lead to the flourishingly development of company donation. However the company donation has the risk to damage the interests of stakeholders. The legal regulation of corporate donation originates from the fact that the agency problem, interest conflict in company donation need legal intervention. The company donation experiences the process that from never admitting its legitimacy to gradually recognizing its effective and legitimate in the judicial and legislative in other countries, and there have incentives and constrained system in company donation legislation in other countries. Our country admit company has the ability to donate from our country" public welfare donation law", but the "company law" does not make a provision in the light of company donation problem. The company social responsibility clause in China's "company law" is a fuzzy, advocacy provision, and cannot be used for the regulation of corporate donation specific issues such as the decision of corporate donation and so on.The third part analysis the basic theory of legal regulation of corporate donation. The company donation belongs to company autonomous matters in essence, and the company can also stipulate donation issues such as decision making in the constitution. However the company autonomous failure problem puts forward the demand for legal regulation of company donation. Corporate governance's two powers separation and the principal-agent theory put forward the clear task for the company donation legal regulation, and also lay the starting point for the company donation legal regulation system design. The premise to scientific regulate company donation conduct is to make the qualitative of company donation behavior attribute according with practice and theory logic. Corporate citizenship theory put forward a good corporate citizen should be actively engaged in social welfare undertakings. Based on this theory corporate social responsibility theory believes that company charitable donation is the altruism behavior to fulfill their social responsibilities with the purpose to promote the social charity and public welfare. However in reality most companies engaged in donation activity because donation can bring long-term or short-term interests, and donation is increasingly becoming a business strategic action adopt by companies to seek their own interests. Although in practice there are some donations with the goal to promote the interests of others, most company donations belong to the practice of enterprise strategy, and this is donation's normal state. The different understanding of corporate donation behavioral attributes in theory decided that corporate donation with different attributes has different governance patterns and behavior target and has different measures in the legal regulation. But a basic problem is that the board of directors of the company and other managers haven't right to decide donations benefit others with the goal to promote the charity based on their position of shareholder's trustee in corporate governance.The fourth part is goal and frame of company donation legal regulation. The goals of legal regulation of corporate donation is to compensate for the company autonomous defects in the donation, coordinate the interest conflicts in company donation efficiently and properly, achieve the institutionalization and standardization of company donation. Specifically, the company donation legal regulation includes the legal regulation of company donation decision-making, directors' obligation and information disclosure's legal regulation in corporate donations and the legal regulation of company defects donation relief and so on.The fifth part discusses the legal regulation of corporate donation decision. As a business strategy the company donation should be decided by the board of directors of company, and only the operator can be competent for the strategic decisions of enterprises. In practice, the board of directors may within their own powers authorized company director layer to decide corporate donation in a certain range. Corporate donation purely benefits others can be decided in the circumstances that all the shareholders agree, of course in practice this is more maneuverability in limited liability company and non-listed companies established in initiate mode. The amount decision and other problem of company donation decided by shareholder should be reserved by the shareholders autonomy so as not to damage the interests of creditors. At the end of the last century the United States of America in the judicial precedent established" rationality" standard of the amount determine of donation for the bound of corporate donation decided by the board of directors. But the premise of the use of "rationality" standards is the understanding that company donation will damage the shareholders, and its purpose is to balance the interest conflict between the shareholders and the public interest. The modern company's strategic donation is to promote the management of the company, and the nature of management strategy of this kind of decision-making determined that it's appropriateness judgment should be introduced into the business judgment rule.The sixth part discusses the legal regulation of director obligation in the company donation. This paper takes board as an example to discusses the company management's obligation in company donation, and the director's obligation in the company donation applies company supervisors, senior management personnel. Corporate social responsibility theory puts forward that the director is not only the shareholder's trustees and the board has the right and obligation to perform corporate social responsibility, practicing charity. But if the director have right to pursue social charity and public interest, the ambiguity of charity and public interest goal will lead to the director's powers not to be bound. This also is contrary to the directors obligations in corporate governance. Directors can only implement company donation with the starting point of company interests in the two powers separation conditions. Director bears the loyalty and diligence duty in corporate donation for company, and should take company interest s maximize as their own action guide.The seventh part discusses the legal regulation of information disclosure of corporate donation. Based on the significant standards of information disclosure and commercial secret protection rules, shareholders' right to know protection and capital market effective theory, and considering the company's motivation to disclose related information voluntarily, the company stakeholder's reality needs for company donation information, company donation information disclosure mode should be the combination of mandatory and voluntary information disclosure in our country, and allow special information exempt from public disclosure. Major company donations may has major effect on company manages, and its risk is not less than the company's major investment, so the information which can influence the rational investor decision-making in company significant donations should be mandatory disclosure. The other company donation information belongings to the company voluntary disclosure category. On the information disclosure mode the listed companies and non-listed companies should be different requirements.The eighth part discusses the legal regulation of the relief of company flaw donation. The company donation's decision and perform as well as donation contract will inevitably violate the relevant laws and regulations or the articles of association of the company, and lead to the emergence of flawed corporate donations and damage the company, shareholders, creditor's interest. Thus we should endow the related subjects corresponding relief rights. The ninth part is the conclusion of the article and the legislative proposals.