A Research On The System Of The State-Owned Shareholder's Rights Trust

When the reforms turning state-owned enterprises(SOE) into standard joint-stock companies are basically completed,the property rights of the state-owned assets have been converted into the state-owned shareholder's rights,which can be divided into state-owned shareholder's rights and state-owned institutional shareholder's rights.According to the existing law, the shareholders of state-owned shares are the State-owned Assets Supervision and Administration Commissions(SASAC) which are governmental agencies,however,it is not appropriate for SASAC to exercise the state-owned shareholder's rights directly.Then in practice there occurs two substitute systems of improvement:the exercise of the authorization of the state-owned shareholder's rights and the exercise under trust.But they are also both facing many problems.The reason in-depth is that the legal relations between SASAC and the trustees are ambiguous. Basing on the premise of China's legal concepts,legal environments and practical needs,this paper attempts to raise doubts about the existing modes of the exercise of the state-owned shareholder's rights indirectly and tries to resolve the problems by studying commercial trusts in the common law system.The first chapter outlines the formation of the state-owned shares in our country and the nature of the state-owned shareholder's rights.The author finds that the existing modes of authorization and exercise under trust can't resolve the problems,such as the state shareholder actual vacancy,the authority intervening too much and operating inefficiently through a comprehensive analysis of the advantages and disadvantages of the practical explorations in recent years,so the author believes that we should choose a new thinking mode to solve the problems:In the second chapter of this paper,the author analyzes the shareholder's rights trust which is considered as the legal basis of trust law of the system of the state-owned shareholder's rights trust.The shareholder's rights trust which emphasizes that all of the shareholder's rights are trust property is different from voting trust.The state-owned shareholder's rights are transformed from the property rights of the state-owned managerial assets,so the aims of the system of the state-owned shareholder's rights trust are to maintain and increase the value of the state-owned managerial assets.The flexibility of the commercial trusts, insolvency protection and the fiduciary regime are deeply fit to the pursuit of the safety and efficiency during the exercise of the state-owned shareholder's rights.Our existing resources of civil and commercial law can provide some supports,meanwhile there are many legal impediments.In the third chapter of this paper,the author intends to research the normalized operation of the system of the state-owned shareholder's rights trust.The author believes that trust contract should be the foundation of the creation of the state-owned shareholder's rights trust through a comparative analysis of trust laws in two different legal systems.The state-owned shareholder's rights trust should be designed to be a self-benefit trust,in which both the settlor and the beneficiary are SASAC,and trust companies are the preferred trustees in the first stage.We can make use of a pilot to expand the scope of trustees to fund management companies,asset management companies and other operators which are eligible.At the same time,the author makes a concrete analysis of the respective rights and obligations of the settlor,the trustee and the beneficiary(the holders of the state-owned shareholder's rights trust certificate) in the state-owned shareholder's rights trust.In the fourth chapter of this paper,the author further explores some ancillary systems,such as the publicity of the state-owned shareholder's rights trust,the prudent rules,the system of the trustee appointment and the system of trust supervision and administration,and then the author puts forward some legislative proposals.