Research On The Legislation Of Company Classified Shares In China

With the issuance of preferred shares,the classified shares legal system construction reentered the field of company law reform.The traditional standardization stock right allocation of one share one right cannot meet the shareholder's preference for heterogeneity,limiting the autonomy of the company's shareholding structure adjustment.No matter from the competition of the company system or the commercial practice,the establishment of the legal system of the classified shares of our company looms ahead.This paper uses the empirical method,historical method,comparative method and law economic method,conducts a comprehensive research on the legislation of company classified shares in our country,hoping to make an attempt to establish and perfect the legal system of classified shares in our country.This paper is divided into five parts:Chapter one is about the basic theory of classified shares.The shareholder heterogeneity and corporation autonomy have laid a solid foundation to the theory of company law for the generation and development of classified shares.The traditional theory of company is based on the assumption of shareholders homogeneity,which leads to many problems of corporate governance,and the reality of the shareholders heterogeneity has gradually been recognized.There is a conflict between the shareholders heterogeneity and a single common share,but it can fully fit with the classified shares,to form external demand for generating classified shares;corporation autonomy promotes the development and innovation of the company system,continues to expand the category and content of the classified shares,it becomes the inherent power of classified shares growing.The principle of equality of shareholders and the balance of interests delineate the boundary between the mandatory norms of the company law and rules of the autonomy of articles of company.The mandatory norms of the company law have the legitimacy of existence only in order to prevent private abuse of power.The principle of equality of shareholders has achieved the transition from formal equality to substantial equality,it should be the basic principle that must be adhered to in the legislation of the classified shares.The principle of shareholder equality provides the legal basis and the interests' space for the design of the classified shares and the diversification of the shares,so as to prevent classified shareholders from changing their rights and obligations and behavior deviating from the legal track.The issuance,alteration and exit of classified shares should ensure that different categories of shareholders have freedom of choice and no coercion from others;the balance of interests is a dynamic standard of classified shares legislation.The conflict of interests under the classified shares system is more complicated;legislators should focus on safeguarding the interests balance between company interests,shareholders' interests and stakeholders',distinguish the company types and participants' real interests,and formulate differentiated classified shares legal norms to adjust that.It should improve the operability and accuracy of procedural norms such as classified voting and voting rights recovery,so that shareholders can effectively exercise legal rights and interests,and timely adjust the imbalance of interests among all parties.Chapter two is about investigation of foreign classified shares legislations and its enlightenment.Foreign companies are rich in practice and accumulated valuable experiences in the legislation of classified shares.Uphold the tradition of authorized legislation of American companies and the strong liberal atmosphere,both "United States Standard Business Corporation Law" and "Delaware Company Law" as the representative of the state corporate law,the restrictions to classified shares are more relaxed,and give the freedom of adjusting shares rights to the companies;the key to Germany classified shares legislations is preferred shares,the revised "Stock Company Law" relaxed the limitations to set up for preferred shares in 2012.In order to achieve the principle of shareholder equality,the law stipulates classified shares voting rights restored and voting rights eliminated;In 2014 "Japanese Company Law" allows company to issue classified shares on matters such as surplus profits,restrictions on voting rights and so on,shares would be expanded to 9 categories,and stipulate class voting and repurchase to classified shares dissent effectively.From the investigation of classified shares history,present situation and legislation of the United States,Germany and Japan,it can get following enlightenment: every countries' company laws,the rules of the stock exchange and precedents have involved in classified shares,these norms have formed a complete system;types of classified shares are diversified not for legal theory deduction,but the reflection of the company's practice;pay attention to keep the balance of interests between classified share and classified share,classified share and common share,to protect the interests of classified shares minority shareholders,to expand the company's internal negotiation space to resolve the conflict of interests.Chapter three is about the legislation present situation and shortages of our country's company classified shares.The present situations of our country's company classified shares are shares category diversity on the law,and a lot of classified shares are exist,living company law lacks clear provisions on the classified shares,stipulating mainly through administrative regulations and normative documents.There are obvious negative effects in the reality of classified shares legislation,resulting in many influences,such as obstruction of company system innovation,restriction of corporation autonomy and infringement of company shareholders' interests,which need legislators to pay attention to.The root of this is that there are the following problems in the legislation of the classified shares: the rules to set the classified shares are too harsh.There are too many restrictions on the property classified shares' issuance proportion,issuance time,and financial situation,the rules of dominant classified shares are rigid,the adopting scope of additional classified shares is limited such as the convertible shares and the redeemable shares;voting mechanism of classified shares is not reasonable.The function of classified voting is limited,not only the scope is not enough,but the procedure and rules are not clear.Elimination of classified shares voting rights lack stipulations,it's not conducive to curb the abuse of control rights;and the interests of classified shareholders are obviously unbalanced.The information disclosure of classified stocks is limited;the repurchase to classified shares dissent is hard to operate.Chapter four is about the legislative path to our company classified share.The legislation of classified share has two paths: the Common law system adopts the legislative path of charter autonomy,and it has great flexibility,but it is also easy to breed agency costs of abuse of power.The Continental law system adopts the legislative path of legalism,it limits the choice of the company,but it has demonstration effect,and is conducive to the maintenance of shareholder rights and interests.There are some different points to choose the legislative path in our company classified share,such as charter autonomy,legalism and differentiation,by contrast,differentiation is more reasonable,but there is also inadequate logic,and take strict statutory categories of listed public company to legislation,didn't consider the GEM company's reality,it's too harsh.Our country should distinguish the form of company and adopt different ways of classified share legislation: the closed company chooses the legislative path of charter autonomy,and the legal norm is mainly based on optional provisions.The public company chooses the legislative path of legalism,according to board listed companies,the GEM listed companies and unlisted public companies in sequential order to reduce restrictions,coordinate and unification between company law and the trading rules of exchange,reasonable application of mandatory norms.After the legislative path is determined,it's need to necessary filter according to classified share right contents.Property classified share can be the introduction of the preferred shares and target tracking shares,the dominant classified share can be the introduction of multiple voting right shares,the limit voting right shares and special items voting right shares,the additional classified shares can be the introduction of the convertible share and the redeemable shares.Chapter five is about the legislation suggestion of our company classified shares.First is legislative improvement to the establishment rules of classified shares: to reduce the set limits to the property classified shares,to increase elasticity to set up voting right shares,to regulate procedure to set up the additional classified shares,and clearly defined on conversion procedure of the convertible share and redemption funding sources of the redeemable shares;second is to improve the legislation of classified shares voting mechanism: to adjust the voting of classification,by the way of summarization and enumeration to determine the classification of voting scope,not by classified shares shareholders' interests suffer or adverse effects for conditions.Construction the exclusionary rules for classified shares voting right,to stipulate classified shares voting right excluded by comprehensive model,the resolution's legal effect which did not comply with the classified shares voting right excluded will be affected;finally is the legislative coordination of the interests of shareholders in classified shares company: for improve classified shares' information disclosure effectiveness,legislation should require company to remind investors of the company ownership structure,executives' office and other special items and therefrom the risk of conflicts of interests may arise,to assess classified shares trading value and potential investment risk more accurately.Distinguish the form of companies and the type of issue,to fulfill the differential information disclosure.To expand application of repurchase to classified shares dissent,broaden the scope of application,not apply "market exception clause" to classified shares,and shareholders of the public company also have the right to repurchase dissent.Company's obligation to inform should be increased on the process of repurchase to classified shares dissent,take notice of objection + non agreement vote mode,to weaken the relationship between exercising the voting right and dissenting shares repurchase.