General Meeting Of Shareholders And The Authority Of The Board Configuration

"The structure that the modern Company Law has built is the results of using the form of constitutional." In this theory, it ensures the company operates efficiently, because of the separation and restriction of the power between the company organs, under the theory of the shareholders limited liability and separation of ownership from management. However, the actual results have been disappointing, the shareholders meeting growing formalized, the Board of managers of power increasingly being elevated, the ideal of the separation and restriction of powers has always been elusive. Is the shareholder's meeting has bigger power or the board of the directors between the two organs?I believe that the answer to this question must be focus on two respects both legislation and practice. The contradiction of the power structure performances "centralization of plenary session of shareholder" in legislation and "centralization of board of directors" in practice reflects the historical trend that the centre of the power transfer from shareholder's meeting to board of the directors, therefore, the wise action of the legislators is to adapt to this trend, not to ignore.This studies focus on the power model changes between shareholder's meeting and board of the directors. Then mainly analysis the reasons that the company power configuration between shareholder' s meeting and the board of directors has two diametrically opposite patterns in laws and practice. And exposits several measures to distribute the company power between shareholder's meeting and the board of directors lastly.The full text is divided into five parts, about 30,000 characters. The major elements of the following are:The first part, recalled both "centralization of plenary session of shareholder" and "centralization of board of directors", the two different configuration modes' meaning and the historical background of birth and development.The second part first inspects the condition of the configuration between the shareholder's meeting and the board of directors in the Western countries legislative, then our country. We find we actually adopt the power configuration model of "centralization of plenary session of shareholder" legislative, and shareholder's meeting is the centre in corporate governance.The third part, inspects the power structure between the shareholder's meeting and the board of directors in practice. As the state-owned share is too large, the shareholder's meeting actually controlled by the biggest shareholders; as well as the small and medium-sized shareholders do not has too much enthusiasm to participate in the shareholder's meeting, the shareholder's meeting has gradually become diminishing. So the board of directors and managers of the company's almost control all important decision-making power. In practice, the pattern of power configuration follows the "centralization of board of directors" between the shareholder's meeting and the board of directors.The forth part, mainly analysis the reasons that the company power configuration between shareholder's meeting and the board of directors has two diametrically opposite patterns in laws and practice. Analysis in the macro view, on the one hand, China has not business judgment rulers, which makes the decision of the Board of directors to be interfered by the shareholder's meeting; On the other hand, China's legal system lacks the effective restriction to the Board of directors, which makes Legislative dare not to adopt the power configuration mode of the "centralization of plenary session of shareholder". Analysis in the micro view, the provisions of our company law is too fuzzy that the power border of the company organs are not clear enough ,and too principle to making it be operated easily.The fifth part, manly exposits several measures to distribute the company power between shareholder's meeting and the board of directors. First, establish the business judgment rulers. It will strengthen the independence of the Board of the directors, and resist the undue interference of the shareholder's meeting. Secondly propose that it can strength the restriction with the right of question and the right of removal. Lastly, propose several suggestions to distribute the power between the shareholder's meeting, the board of directors and the managers and increase the operability of the law provisions.