The Perfection Of The Balance Of Power Of Company

With the development of the corporation institution in our country, corporate governance has become a focus of public. In this article, I want to present comparative legal research on corporate governance focusing on the mechanism of balance of power.This article is of the view that the corporative ownership includes the shareholder's share right and the corporative proprietorship. The establishment of the corporative proprietorship and the departure of the corporative ownership and the corporative controlling right make the balance of power among the internal organs of company necessary. Founded on the study in the stock company, and based on the analysis on the present problems and the introduction of foreign experiences, this article intends to put forward some suggestions on the corporate governance of our country focusing on the mechanism of balance of power among the meeting of Shareholders (the "Meeting"), the Board of Directors (the "Board") and the Board of Supervisors (the "Supervisors").The mechanism of balance of power between the Meeting and the Board is the key problem of the mechanism of balance of power of company. We can conclude from the analysis on the status of the mechanism of balance between the Meeting and the Board that the Meeting's lack of effectual restriction to the Board is the most obvious problem in the mechanism of balance of power between the Meeting and the Board. Through a comparison between the advocacy of "Shareholders Oriented" and "Board Oriented", this article believes that the enhancement of the power of the Board does not impair the shareholder's final control on the Board and the management, and intensifying the balance of power by the Shareholder on the Board is a significant task to consummate the mechanism of balance of power between the Board and the Shareholder. For this purpose, at first, power and responsibility of the Board and the Shareholder shall be explicitly allocated by legislation. Secondly, protection on the right of the shareholders shall be paid great attention, which is a basis to execute the Shareholders' control on the Board, and thus perfecting the institution of shareholder voting, including an introduction and development of accumulated poll system and proxy collection, is the most important measure to achieve this goal. Thirdly, the obligations of the board members shall be imposed intensely, especially the establishment of duty of care of the board members in both legislation and practice, which is another important measure to realize the balance of power between the Shareholder and the Board. At last, the institution of shareholder litigation shall be put in practice. Shareholder litigation is the most effective means taken by shareholders to overhaul the Board, and in fact the last one. In terms of legislation, we can take reference of the successful experience of Japan in shareholder litigation. An introduction of representative litigation to the consummation of corporate governance and the protection on rights and interests of minor shareholders is of great significance in reality.With regard to the internal balance structure of the Board, it is in essence an extension of the mechanism of shareholders' control over the Board, which can be interpreted in two aspects. On the one hand, the Board is the executing agency of the company and its independence is the premises and basis of its performance of duty, which is also the key point of the internal balance structure of the Board. According to the practice of western corporate administration, the institution of independent board member is the most efficient measure to guarantee the independence of the Board. While advocating the positive effect of the institution of independent board member on the current situation in China that stock companies are heavily controlled by the interior people, this article also puts forward some suggestions on the device of the institution of independent board member and especially emphasizes the harmoniza...