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Study On Several Legal Issues About The Institution Of General Stockholders' Meeting

Posted on:2011-10-02Degree:MasterType:Thesis
Country:ChinaCandidate:B Q ZhaoFull Text:PDF
GTID:2166360305957020Subject:Civil and Commercial Law
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In recent years, modern information technology developed rapidly and electronic communication technology used widely in the field of commercial. All of these force people to consider the legislative integration issues of the electronic communication technology between its traditional and modern reflection. E-commerce brought new opportunities for commercial area, as well as posed a challenge to the existing Commercial Law. This thesis bases on the general meeting of shareholders,and the discussions in this thesis focus on the legal issues related to the general meeting of shareholders raised by the development of modern information technology system. The performance,the impetus generated from Information technology systems in general meeting,contains the following aspects:The development of network technology enriches the form of the general meeting of shareholders,it turns the sole scene form of the general meeting of shareholders into the form which exists at the same time between the scene and the network.This new form can attract more shareholders to participate in corporate governance and change the situation of the major shareholder who control the general meeting of shareholders.The results of this network to vote on the use of modern means of network communication technology are more convenient and timely,as well as brings convenient for shareholders.The wide application of Internet technology provides a technical support to the extempore motion of the shareholders meeting.But,at the same time,the disadvantages of information technology are slowly revealed.The focus of our research and analysis contains the application for Electronic signature technology,the analysis and judge of the data message, the collection of electronic evidence and so on.This article is divided into three chapters.The first chapter embarks from the problems arising in our existing meeting of shareholders.Expounding the the largest system integration at this stage between our general meeting of shareholders and information technology from the following aspects:the form of the general meeting of shareholders,the interim proposals, notification and inquiry from the shareholders and the voting rights of shareholders . First,the diversity of development patterns of meetings shareholders is investigated through the overview of network communication technology. The Internet voting is no longer mysterious and complex with the development of modern information,it will be the best alternative for lots of shareholders who can not personally participate in the scene meetings.The implementation for Internet voting system of shareholders meeting exceed the traditional sense of time and space between the shareholders and the company and set up a bridge in low-cost between management and shareholders in the company.Second, the eligibility of the shareholders who vote on network should be limited in the voting system,for example,the Non-tradable shareholders and the controlling shareholders.They should be prohibited for internet voting,because it relates to the balance of the interests between minority shareholders and major shareholders.The major shareholders do not have the need for the network to vote because of their dominant position.Third,for the shareholders who have finished the network voting,if they draw back the meeting in midway,they be dealt by abstaining generally when network voting are interrupted for various reasons.Although it is not in conformity with shareholders' original intention,from the view the balance of interests in practice,it is more reasonable in accordance with the abstention at first. Because the probability of occurrence for network failure is small,and the Internet voting is also a long time,Individual shareholders'drop-outs can not affect the whole process of general meeting of shareholders.This ensures the expected benefits from that the company make timely business decisions and saves the times of other shareholders.The benefits of Internet voting rights exposed the shortcomings of the proxy voting system,so it will be gradually replaced by the network voting. Fourth, the feasibility of temporary move in the network division.The shareholders who vote through the internet voting system can know the meeting motion making use of the Internet, multimedia and other high-tech multi-angle,participate in the exchange and be informed that the situation of the general meeting of shareholders.They can also comment or vote on the motion for the interim general meeting. As the shareholders who vote with the stock exchange declaration system can not meet this requirement, so there is limited application of the internet voting system in practice. Fifth, the electronic issue of the network voting inquiry.The establishment of information feedback system,before the shareholders know the final voting results,let shareholders know if their votes are really sent successfully and included in the total vote number by shareholders meetings. This can be avoided forcing the shareholders to exercise the right to revoke when the final outcome is a foregone conclusion. So that the effective vote are understood by the shareholders timely,quickly and accurately.The feedback forms should be automatically return receipt, written, e-mail, SMS or other ways.The second part, based on the analysis of the first chapter,focuses on the issue of sharing the responsibility of each of the main. In the course of the application of information technology, For the reasons of the computer system's or Internet's failure in the network communications,the infection virus,the busy network communication lines,the server overloaded,leading to online exchanges and information on the voting process interruption, delay, error and a series of network communication risks.,how to deal with the issue of sharing responsibility among the shareholders, companies and ISPs when these things occur.In generally, for the ISPs intentionally violations,service providers directly bear tort liability and at this point they are the direct right infringement person.But due to a network service provider at fault in causing errors, If service providers conduct the input interventions which shows the selecting, modifying or deleting information, the responsibility should be shared by the network service broker and service the Client. If the intermediary service provider is simply providing the access network transmission service provider and they have no input interventions.In this case, the responsibility for resulting in the loss of meaning that does not reach the company should be undertaken by the shareholders and accountability by fault. There is a question on the division of responsibility when the responsibility shared between the shareholders and the company, so the allocation of the burden of proof is very important.For the medium and small shareholders,if they can prove that no fault can be exempt from their own operating procedures. This will give disadvantaged small shareholders the greatest protection, and also inconsistent with the legislative intent.The third part is researching the general meeting of shareholders involved in the system related issues of electronic evidence. First, it is the overview of general issues of electronic evidence. As the electronic evidence is still not widely appreciated in China,many technical and legal problems are not resolved.For example,the reality of electronic evidence, the determination of the Effect of electronic evidence,how to determine the original electronic document,how to correspond the virtual subject and the real actors with a virtual electronic evidence and so on.On the collection of electronic evidence, mandatory intermediary network service providers the obligation to record and preserve information;On the identify aspects of electronic evidence,it is with the standards of the admissibility, reliability and integrity;On the identification of the electronic communications records for the original,it adopts the principle of functional equivalence established by "Model Law on Electronic Commerce," which is from the United Nations.Electronic signatures and data messages which are important component of electronic evidence play an important role in e-commerce. Second, it is the data message on the confirmation of the validity and ownership, Including the identification of the subject to send and the confirmation of the data receiving time.The reception of data messages normally is considered to be the recipient of data messages into a specific system time.There also involves repeating the question to vote and to change the voting.There are two opposite points of view on whether to change the voting and both sides have a certain degree of rationality. However, if the shareholder's action to prevent errors on the network given the results of shareholder privileges to change voting,and it objectively leds to the network and on-site shareholders inequality, then it may be used by individual shareholders to achieve some purpose through changing the vote artificially.This deliberate act subjectively is difficult to be controlled by the general meeting of shareholders. So it is a reasonable nature for the shareholders to change votes against the network from the current view.Finally, it's a reliable legal effects of electronic signatures.Not only do the reliable electronic signature solve the main authentication problem,but also make the signing subject to be associated with the data message in legal links. The electronic signature from the authority and impartiality of the electronic certification services has a strong credibility in general. Electronic signature is mainly used for the data message safety and do not be denied or tampered.It is a guarantee of technical. The electronic authentication is mainly used in communications security in the credit and it ensures the parties true and reliable.This is a system of guarantee. If the shareholders vote in the network using an electronic signature to send documents or information,so the addresser is default for shareholders.The shareholders is the main of sending the document or information. This solved the confirmation of the identity of the shareholders.Modern information technology in the widely used in general meeting of shareholders has been driving the system changes with depth.The corporate governance rules should break the traditional model of the original,and it should play out the meaning of democracy for general meeting of shareholders.
Keywords/Search Tags:Information technology, General meeting of shareholders, Internet voting, Electronic evidence
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