On The Adjustment Of Company Form In China

Since the1990s, the waves of company law modernization reform have sweptacross the world. Various countries and various regions have proceeded furtherreviews and reforms to the system of company law. Thereinto, the adjustment andinnovation of company form is the main line of company law modernization reformin various countries.In our country, since the company law promulgated in1993, the voices ofcompany form adjustment have existed. As company is an import, the introduction ofthe company system was not the spontaneous demand of economic development inChina, but the need of state-owned enterprise reform. And, we adopted the dualclassification of company in traditional civil law countries, which let us not put toomuch energy on the differences between limited liability companies and incorporatedcompanies in our company legislation. Therefore, in practice, a series of problemshave arisen, such as, the insignificant difference between these two kinds ofcompanies and applying rules unreasonably, etc. Although the revision of companylaw in2005has noticed this, and highlighted the differences between these two kindsof companies to a certain extent and dramatically deregulated the limited liabilitycompany, the result was still not satisfactory. Now, whether in theory research or inpractice experience, our company law is equipped with the ripe conditions for astructural change of company form. This article, we will take the classificationstandard of these two kinds of companies as the pointcut, discussing the problems ofdual classification from the angle of comparative law and proposing the concretereform path.From the textual context of this article, firstly, it introduces the company formand classification standards of our current company law and raises its problems in ourcompany law. Secondly, it discusses and analyses the differences between limitedliability company and joint stock limited company, revealing the problems of dualclassification in the civil law countries, summarizing the essential classification- publicity and closure. Thirdly, it focuses on the company form reform in foreigncountries, carrying on a brief introduction of the company form in Japan, France,Germany and the UK, and respectively summarizing the merits we should learn from.Last but not least, it enumerates and discusses the concrete adjustment path of ourcompany form, having specific discussions of the limited liability company abolition,the possibility of limited liability company integrating the non-public stock-limitedcompany established by sponsorship, and obtaining conclusion.Above all, to solve the problems of dual classification of limited liabilitycompany and joint stock limited company, firstly, it is to realize the essential standardto distinguish the company form. Secondly, it is the “nativization” of this essentialstandard. Specifically, as for joint stock limited company, we can divide it into publiccompany and closely held company on the standard of whether public offer stockaccording to the paragraph2of article10in the Securities Act. The public company ismainly regulated by the mandatory norm and the closely held company shall applymutatis mutandis to the rules of the limited liability company. At the same time, basedon the standard of whether public offer stock on the open market, public company canfall into listed company and unlisted company. It suggests that the listed companyshould be regulated by the Securities Act and other relevant laws, but not thecompany law. And the non-listed company is applicable to the strict rules next to thelisted company for its publicity. Then, company is suggested to be divided inaccordance with the size. Large-scale companies shall be imposed a stricter regulationin the construction of financial openness and supervision and internal supervisionmechanism, whereas small companies should be given more freedom for governance.Overall, only in this way, can we effectively integrate the existing resources ofour company law, changing the situation of unbalanced apply, making our companyform better meet the needs of reality, and providing a better service to thedevelopment of socialist market economy.