| Nowadays, stock-rights is a form of contribution appearing in company practice in our country. As a significant capitalization method, the contribution plays an un-replaceable role in the market economy society. The old Corporate Law listed legal formalities of contribution, and thought stockholder's rights and other rights couldn't be used for contribution. The legality of stock-rights contribution is a hot topic for a long time. The new Corporate Law acknowledges it now. The change of legislator's attitudes reflects the change of ideal of the Corporate Law. The old one stressed on the control of the capital, while the new one emphasized the freedom of the capital and the efficiency of the corporate governance.Along with the new Company Law promulgating, the stock-rights contribution finally had the legislation basis in the actual operation. The open form of contribution of Article 27 of the new Corporate Law clearly includes the stock-rights contribution, but the stock rights contribution in the relevant legal norms is not clear, and is difficult to normal operation in practice, so there is a contradiction between the open form of contribution of the Corporate Law and the actual operation of the company register. With the increasing of discussion the stock-rights contribution , and the actual situation urgently needed, it is needed to make a theoretical analysis and legislative building of the stock-rights contribution quietly appeared. This article comprehensively and systematically discusses the legal issues of stock-rights contribution. In a daily life, stock-rights contribution is the disposition of property and civil needs investment and financial management, become rivals in one of the ways in asset value. The form of stock-rights contribution is also permitted by law, and to be defined. As the market economy development and maturing, the stock-rights contribution has been in practice for us to put forward new conditions and problems, we need to advance with the times, adjust and improve relevant systems.Besides the introduction and conclusion, the article is divided into four parts, the basic theory of stock-rights, stock-rights of the legislative system of inspection, the legal risks of stock-rights contribution and to improve the stock-rights of the proposed system is analyzed and discussed, hope through research to build on the stock-rights contribution system reference point.Part 1: discusses about the basic theory of stock-rights contribution. The concept and classification of the stock-rights had detailed summary and analysis, stock-rights is the shareholder capital contribution to the company as a result of the rights of members of the company, stock-rights is a shareholder-based company and the status of universal access to basic rights is the Company Law in one of the core concepts . Stock-rights usually can be divided into rights and public rights of self-interest, fixed rights and non-solid rights, the rights of individual and minority shareholders rights, the proportion of equity and non-proportional shares of common stock and special stock. Stock-rights is also a theory of community differences in the nature of the larger point of contention. There are equity ownership of that debt, said equity, stock-rights stake in the independent members as well as civil rights, said that an independent rights to say which option is the more supporters of the doctrine of jurisprudence, the author also said that such an independent right to better representation of the special shares property, is more reasonable. Through the concept of stock-rights, classification and analysis of the nature, the paper elaborated the legal nature of stock-rights contribution, contribution behavior is to achieve equity shareholders of the factual and legal basis, stock rights are essentially within the stock transfer is a legal fiction the rights of investors, but also with objectivity, certainty, and profit.Part 2: legislation investigated stock-rights contribution. Overseas stock-rights on the relevant legislative system of examination and analysis , summarized some of the effective regulation of equity of the legislative system, by drawing on our combined economic characteristics, for our use. This part of our stock rights from the nothing of practice, to the current domestic legislation between the lots of applications were compiled and summarized briefly, and March 1, 2009 "Registration and Administration of stock-rights contribution," the official after the promulgation and implementation made specific provisions related to analysis and summary.Part 3: analysis of the legal risks of stock-rights contribution. The establishment of any system has its benefits also has its drawbacks, we should learn to profit and avoid loss, the first step should be to address its risks. Stock-rights contribution has not an unified, systematic, comprehensive legal provisions of its specialized but fragmented distribution in the "Company Law" and the law of all departments within the framework of the system, prone to conflict. Second, such a provision is also to cause inconvenience to the operation of the practice, and some cumbersome procedures, approval documents more, gave equity shares has brought some unnecessary barriers. The case of defective equity shares has not been well controlled, equity valuation certification mechanism is the soft underbelly of stock-rights contribution, in order to better protect the rights of creditors and the related person's interests must be based on understanding the risk to try to prevent the occurrence of risk avoidance.Part 4: legislative proposal on the stock-rights contribution. Stock-rights contribution is growing emerging market economy, things started late in China, establishment of system is not perfect, need to gain experience in practice, refining, various views were added. Stock-rights contribution assessment is to quantify the property rights as a prerequisite to determine the valuation of time is essential so that in the event of fluctuations in equity values have clear identification of points, to accountability on the difference to provide the basis to fill .At the same time the parties should be given more freedom on the equity of the independent consultation room, to better reflect the laws of free and fair value. Departments from outside of the stock assessment of supervision, can learn from Germany's "Stock Corporation Act," the auditor system, strengthen the substantive review of the business sector obligations. Improve the stock-rights method investor's qualification and limited warranties. Establish a system of information service system, maintaining the company in accordance with the law of trade secrets under the premise of perfect information disclosure system, and gives trading partners the status of the assets of the company the rights to investigate and gather information. Part of the current stock-rights contribution restrictions and can not give full play to the positive role of market regulation, contribution restrictions on certain shareholders, and the proportion of stock-rights contribution restrictions can relax, giving parties more of the independent rights.In sum, stock-rights contribution is a very complicated issue both in research and practice of corporate law. This paper is just an elementary discussion on the base of other people's research, and it raises several opinions which still need to be developed. The author would be reluctant to carry out further research in order to contribute the humble efforts to the completeness and integrity of system of stock-rights contribution in China. |
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