Research On The System Of The Restrictions On Controlling Shareholders' Voting Right

After years of development, the company has formed a structure of a highly separation of ownership and management. In this structure, as the link between the shareholders and the company, voting right became very important to the shareholders. Shareholders can control the company and safeguard their rights by the exercise of voting right. However, under the absolutism of the one-share-one-vote principle and the majority Rule, the controlling shareholders can get a superior position on voting right easily with the majority shares they have. Through the exercise of the voting right, the controlling shareholders can control the general meeting of shareholders, and then get the control of the whole corporate, which will make the minority shareholders'voting right ineffective and cause a serious threat to the interests of the minority shareholders and the company. Therefore, it's necessary to make appropriate limitations to the voting right of the controlling shareholders. This can not only safeguard the interests of the company and the needs of small and medium shareholders, but also help improve the corporate governance structure. From this point of view, according to the situation in China, this thesis studies several related issues about the system of the restrictions on controlling shareholders'voting right.In the first part, the thesis explains the theoretical basis of the system of the restrictions on controlling shareholders'voting right in jurisprudence and company law. First, from the view of jurisprudence, although the system of the restrictions on controlling shareholders'voting right can limit the controlling shareholders'voting right in some extent, the restrictions on controlling shareholders'voting right are based on the need of preventing the controlling shareholders from abusing their voting right. Further more, the restrictions can protect the equity of the right and the obligation between the controlling shareholders and the minority shareholders. It satisfies the requirements of real justice. Second, in the view of company law, as the basic rule of the general meeting of shareholders, the majority Rule is on the base of the common interests which is not only between the company and the shareholders but also between the controlling shareholders and the minority shareholders. Therefore, the common interests which we mentioned above is very difficult to be realized. As a result, under the unlimited majority Rule, controlling shareholders often take the advantage of their superior position on voting right to infringe upon the interests of the company and the minority shareholders. The system of the restrictions on controlling shareholders'voting right can not only modify the majority Rule, but also achieve the real equality of shareholders'right.In the second part, the thesis discusses the value of the system of the restrictions on controlling shareholders'voting right in three aspects. Firstly, the system of the restrictions on controlling shareholders'voting right can weaken the controlling shareholders'control to the general meeting of shareholders, and strengthen the minority shareholders'voting right. The system is very helpful to attract more small shareholders to participate in corporate governance and increase the general meeting of shareholders on democracy. Meanwhile, it also has positive meanings to strengthen the supervision of the general meeting of shareholders to the management and make the corporate governance structure more perfect. Secondly, from the analysis of the actual situation in China's reform of state-owned enterprises, the system of the restrictions on controlling shareholders'voting right will help stimulate the small shareholders'awareness about their own rights, promote their active participation in corporate governance, and then create an effective check on the controlling shareholder. This is conducive not only to solve the problem called "internal control" existing in some of the state-owned enterprise, but also to protect the interests of small shareholders from the controlling shareholders'violations in the process of the reform of state-owned shares and help optimize the management of China's state-owned enterprise model. Finally, since the system of the restrictions on controlling shareholders'voting right is helpful to promote the small shareholders to participate in corporate governance, and balance the costs and benefits for them in corporate governance, it has great value in guiding the small and medium investors to invest more rationally.In the third part, the thesis analyses the feasibility of building the system of the restrictions on controlling shareholders'voting right in our nation. The author starts from the compatibility of the system of the restrictions on controlling shareholders'voting right with the voting rights system on our nation's legislation, then indicates that building the system of the restrictions on controlling shareholders'voting right tallies with our nation's legal inspirit of protecting small shareholders'voting right, and it will also improve the prior protection mechanisms of small shareholders'voting right. Moreover, by analyzing the nature of shareholders'voting right and the relevant provisions of the"Company law", the author points out that in China's current legislative system, the controlling shareholders'voting right can be restricted. Meanwhile, the thesis also discusses the problems that may be brought by the system of the restrictions on controlling shareholders'voting right, which involves the impact on the controlling shareholders'interests and their passion of investment, and the changes of the costs and efficiency in the corporate governance. Through the above analysis, the author concludes that it is feasible to build the system of the restrictions on controlling shareholders'voting right in our nation.In the fourth part of this paper, according to the situation in China, the author tries to discuss several relevant problems about building the system of the restrictions on controlling shareholders'voting right in our nation. After analyzing the legislation of other countries and areas in the world, the thesis tables the proposal of the legal mode that we should adopt. On the base of the characteristics of the current shareholding structure of the companies in China, the authors advises that the mandatory rule of the law and the arrangements by the company on its own will should be combined to control the controlling shareholders'voting right. And then, after inspecting the relevant laws and regulations in Britain and Germany, the paper gives the advice about the scope of the system of the restrictions on controlling shareholders'voting right, involving the matters which should get the support from more than two-thirds of the general meeting of shareholders and the election of the Board of Supervisors. To prevent loopholes in the same time, and with the respect for the autonomy of the company, the constitution of the company ought to be entitled to make provisions about the other matters to which it thinks the system of the restrictions on controlling shareholders'voting right should be applied. Finally, in the specific design of the system, the thesis describes the standards of the applying of the system of the restrictions on controlling shareholders'voting right, and improves the system of the responsibility that the company and the shareholders should bear when they violate the rules.