Research On The Proxy Solicitation In The Listed Company

After the amendment of the Securities Law in 2019,it not only established a special chapter on the protection of investors' rights,but also stipulated the relevant content of shareholder rights solicitation for the first time in the legal provisions of this chapter,which clearly stated that shareholders' rights such as voting rights and proposal rights of listed companies could be solicited.At the same time,regulations are also made on the qualifications of the solicitors,the information disclosure in the public solicitation and the corresponding responsibilities that the public solicitation should bear.The expression used in securities legislation is public solicitation of shareholders' rights,while from the perspective of foreign legislation and practice in and outside the region,such expressions as proxy solicitation,solicitation of voting rights,solicitation of proxy or solicitation are more common.As early as in the 1990 s,the proxy solicitation activities in China's securities market emerged.Although without the guidance of systematic norms,the practice of proxy solicitation has been going on for nearly 30 years in China.But,why has securities legislation ignored the issue of proxy solicitation for decades?This may be related to the development history of China's securities market and listed companies.Most of the initial listed companies in China's securities market are state-owned enterprises,whose shareholding structure shows a tendency of dominance.This makes proxy solicitation useless.With the reform of non-tradable shares,the listing of a large number of private enterprises and the implementation of various equity incentive schemes,which makes the proxy solicitation activities increasingly active.However,the system has not made any difference in improving the governance of Listed Companies in China,and the system is obviously superficial.Therefore,it is very essential to construct and improve the proxy solicitation system to adapt to China's national conditions,and then to conduct the practice of proxy solicitation,to optimize the governance of listed companies.It is with this goal that the theoretical research on the proxy solicitation system of listed companies in China is carried out,which includes the analysis of the theoretical basis;There is also a carding of the actual operation;It not only reviews and sorts out China's history and current situation,but also analyzes and draws lessons from foreign countries.On the basis of the foregoing,this paper mainly responds to four questions:First,how is the practice of proxy solicitation in China and what problems need to be optimized;Second,what is the legal nature of the act of proxy solicitation;Third,how to construct and improve China's proxy solicitation system of responsibilities in theory;Fourthly,how to formulate and improve China's proxy solicitation system through legal expression in reality.The dissertation consists of five chapters,each of which is briefly described as follows:Chapter ? briefly introduces the proxy solicitation system,sorts out the current situation of the practice in China,finds out the existing problems,and discusses the adaptability of the system.The proxy solicitation system is irreplaceable.The practice of proxy solicitation in China's securities market has been carried out for nearly 30 years.In the early stage,the number of annual solicitation was not much,mostly the sporadic contention for the control rights of listed companies.Later,due to the reform of non-tradable shares and the advancement of the employee stock ownership plan,as well as the continuous increase of the number of listed companies,the number of annual proxy solicitation in the securities market increased sharply.The practice of China's proxy solicitation seems to be prosperous and diverse,but it is characterized by a single subject and close connection with the listed company itself,a single subject for most of the solicitation,complex resolution and insufficient explanation,no specific and formal standard for information disclosure,and so on.To sum up,the problems of China's proxy solicitation system are manifested in three aspects: theoretical level,normative level and practical operation level.China's securities market investment environment,internal governance mechanism of listed companies,external securities administrative supervision,investor litigation relief and so on can adapt to the proxy solicitation system,the existing securities market investors have a demand for this system;The positive function of this system can improve the existing market investment environment,contribute to the optimization of the internal governance mechanism of listed companies,and provide a new way for external supervision and so on.Therefore,China's proxy solicitation system can be improved from the aspects of improving the efficiency and constructing the system of rights and obligations.Chapter ?discusses the legal nature of the act of proxy solicitation and analyzes the basis of the system to solve the problems at the theoretical level of the system.The proxy solicitation system originated from extraterritorial region and has been developing around the governance of listed companies and the competition for corporate control rights.It can not only arouse the enthusiasm of minority shareholders to participate in the governance of listed companies,but also strengthen the supervision of the governance of listed companies and prevent the abuse of shareholders' rights.The above-mentioned functions of the system meet the needs of China's securities market.The act of proxy solicitation is carried out by the solicitor,which can be partially explained by the principal-agent theory in traditional civil law.Although it contains the content of principal-agent,it also more than that.At the same time,the traditional civil contract theory can only partially explain the act of proxy solicitation.Moreover,the implementor of the act of proxy solicitation does not completely belong to the legal subject under the civil subject system.In addition,the implementation of proxy solicitation needs to take listed companies as the carrier,the securities market as the institutional background,involving the interests of the majority of securities investors.Therefore,it can be regarded as a mixture of civil and commercial law in theory.China's stable political conditions,rich economic foundation and healthy legal environment are the practical basis for the construction of the system of proxy solicitation.The positive and negative institutional functions of the proxy solicitation system are enough to prove the necessity of the system construction.The necessity of system construction can be realized by clarifying the principles of system construction,designing specific rules of system and then applying them reasonably.Chapter ? discusses how to construct and improve the rights and obligations of China's proxy solicitation system in theory,in order to partly solve the problems at the level of institutional norms.The principles of fairness,efficiency,safety and cost should be adhered to in the improvement of the proxy solicitation system.At the same time,the practice of proxy solicitation also needs to be guided by specific implementation norms.The system of proxy solicitation can be researched from the standard level and the content,among which the specific standard of proxy solicitation should be formulated by the CSRC.In the improvement of the proxy solicitation system,attention should be paid to its connection with the shareholder's right to know,securities information disclosure and other related rules,and appropriate arrangements should be made in the specific norms of the proxy solicitation system.For example,it can guarantee the shareholders' right to know through the procedural setting of proxy solicitation,and clarify the relationship between information disclosure in proxy solicitation and securities information disclosure.In addition,combining some related issues remain to be discussed in the proxy solicitation system with the current legislation of securitiesin to analyse,discusses the related subject construction of the specific rights and obligations in the proxy solicitation system,specifically formulates that the paid solicitation and general authorization should be prohibited,analyses the setting of information disclosure rules in the proxy solicitation,and reasonably plans the rules for the exercise of shareholders' proposal right.Chapter ? discusses the legal liability bearing mechanism of the proxy solicitation system based on the existing legal provisions.The construction and improvement of a complete legal system should not only include the content of rights and obligations,but it is also necessary to learn the mechanism of liability.Because the issue of institutional norms naturally involves how to bear the legal liability of the system.The generation of legal responsibility is closely related to the system design,and legal responsibility is also included in the system content design.This chapter analyses how to design the legal liability of the proxy solicitation system through the discussion of the system function,the interest conflict between relevant subjects and the limit of contract autonomy in the system,and combining with the actual situation in our country.On this basis,this dissertation discusses the jurisprudential basis,liability bearing system,liability bearing subject and specific content of the legal liability of the proxy solicitation system,and holds that the proxy solicitation system,as a legal system in the scope of civil and commercial law,should mainly discuss the relevant content of civil liability in the system construction.The legal liability stipulated in the fourth paragraph of Article 90 of the Securities Law of China should be a kind of civil tort liability.On the basis of the foregoing discussion,this paper specifically analyzes the liability form,constituent elements and causes of exemption of liability of this kind of tort.Chapter ? combining with the actual situation in China,puts forward the legal expression of the improvement of China's proxy solicitation system and solves the problems of the actual operation of the system.Through sorting out the existing relevant laws and regulations on China's proxy solicitation system and evaluating them in combination with extraterritorial regulations,it is concluded that the existing laws and regulations in China the existing norms in China are not enough to build a mature system,and cannot effectively regulate the practice of the securities market,and the existing norms are not connected enough and do not have good operability.The existing standard needs to be improved from three aspects: The setting of the standard system,the sorting of the standard content,and the deletion of the standard.At the same time,the purpose of the legal amendment is primary,and change the "superficial" operation status of the proxy solicitation system;Second,reduce the cost of solicitation;Third,integrate the existing norms and build a normative system.The construction and improvement of the legal system will be realized in the form of legal expression.But the legal expression of the system also needs to conform to the national conditions of the expression.According to the actual situation in China,the relevant provisions of the Company Law and the Securities Law can be amended,and the relevant contents about the proxy solicitation can be explicitly added in the provisions of the Company Law.It may also authorize the CSRC to formulate specific implementation standards in the provisions of the Securities Law.The most important thing is that the CSRC should formulate uniform rules for the implementation of proxy solicitation,so as to provide clear guidance for the solicitation.