| The state-owned capital operating company, which is put forward for the first time in the third plenary session of the 18 th session of the central committee of CCP, is a new party created between the supervision institutions and the state-owned company. Its main activity is to do capital operating, not to produce products or provide service. With the implementation of the Policy, most of state-owned shares will be owned by the state-owned capital operating company. And so far, most of state-owned shares are just ordinary shares, without many kinds of shares. It seems that we can adjust the proportion of share to realize the different goals of different state-owned companies. But in fact, it’s not. It can be reflected by the frustration we encounter when trying to solve the problems of state-owned company. Since the implementation of the Reform and Opening up Policy, we have been promoting the reform of state-owned company, which is an important part of the reform of the economic system. With more than 30 years passing away, though the business performance of the state-owned companies has been improved greatly, there are still some problems of state-owned company, such as, the intervention of the government into enterprises, the missing owner, the control by the internals, and so on. The key of these problems is that we haven’t established effective property right system in state-owned company. Under the circumstance that only ordinary share exists, it seems that the only method to solve the above key problem is to diminish the state-owned shares. But apparently it’s not enough. On the one hand, it’s not easy to diminish the state-owned shares. Because we need to find buyers who have abundant money, and this process is extremely time-consuming. At the same time, the selling of a huge amount of state-owned assets may lead the price of the assets go down, causing the loss of state-owned assets. On the other hand, there exist some state-owned companies in our real life, which need state-owned capital to extract. But at the same time, the government needs to keep a certain control in these companies. Obviously, diminishing the state-owned shares is not enough to solve this problem.The government put forward a new reform of state-owned company, which is based on classification. It requires that we need to distinguish the state-owned company for public welfare from the state-owned company for profits. And different kinds of state-owned companies shall be reformed and regulated in different ways. It has already been a great improvement, compared with the past practice. But the standard of classification is criticized by the educational circle. And the professionals put forward their own standards of classification. With rigorous analysis, the Author thinks that state-owned capital can also pursue profits. Based on this analysis, the Author proposes that we can classify the state-owned company according to the establishment purpose of the state-owned company. The state-owned company for public welfare aims for realizing the social and public interests, and the main purpose of the state-owned company for profits is to pursue profits. Through the research of preferred stock and golden stock, which are common on abroad, the Author finds that preferred stock and golden stock can respectively satisfy the different goals of the state-owned company for public welfare and the state-owned company for profits. Then the Author advises that the state-owned capital operating company can hold preferred stock or golden stock to realize its different goals. Then I put forward my own suggestions for these two kinds of shares. Below are the logic structure and the main content of this article:The first chapter starts from the introduction of the operation mechanism of the state-owned capital operating company. The state-owned capital operating company is a kind of enterprise which is established between the supervision institutions and the state-owned company. Its main business activity is to operate capital, in order to avoid the direct intervention of the supervision institutions into the state-owned company. So far, there is only one kind of share, i.e. the ordinary share, which is the main form of shares held by the state. With rigorous analysis, the Author finds that there are still some problems in the state-owned company in our country, such as, the intervention of the government into enterprises, the missing owner, the control by the internals, and so on. The core problem is the problem of property rights. Under the circumstance that only ordinary share exists, the only solution of these problems seems to be diminishing the state-owned share. But apparently, it is not enough. We need to find a more suitable solution.The main purpose of the second chapter is to explain the necessity of applying golden stock to the state-owned company for public welfare and preferred stock to the state-owned company for profits. The classification of the state-owned company is a new method of the reform of the state-owned company. But the standard of classification, which classifies the state-owned company into two kinds, one mainly for public welfare and the other in competitive industries, is criticized fiercely by the education circle. From the Author’s perspective, the Author thinks we can classify the state-owned company into two kinds, one for public welfare and the other for profits. And through my research, I find the function of preferred stock and golden stock can respectively be suitable for the goals of the state-owned company for profits and for public welfare. So the Author advises that we need to hold the state-owned preferred stock in the company for profits and hold the state-owned golden stock in the company for public welfare. Then the Author analyzes the advantage of respectively applying the two kinds of shares into the two different kinds of companies, in order to prove its necessity.The third chapter is mainly about the Author’s thought of the legal system of the state-owned preferred stock applied to the state-owned company for profits. After we recognize the necessity of applying the state-owned preferred stock to the state-owned company, we need to design the detail legal system of the state-owned preferred stock reasonably. This chapter consists of two parts. The first part is about the rights and interests of the state-owned preferred stock. Some are property rights and interests, and some are participatory. As to the property rights and interests, the Author thinks that the state-owned preferred share shall be accumulative for its annual dividends. But the holder of the preferred share shall have no rights for the rest of the profits of the company after they have got their own dividends. The rights for the remaining assets after liquidation can be stipulated freely by the article of association. As to the participatory rights and interests, the matters on which the holder of the preferred stock can vote shall be within a certain range which will influence or damage their rights or interests directly. The second part of this chapter is mainly about the methods that could be used for the protection of the legal rights and interests of the holder of the state-owned preferred stock. It includes to give the preferred share holder more comprehensive rights to know about and to supervise the state-owned company, to limit the proportion of the preferred share, and the recovery of rights to vote when some special circumstances happen.The forth chapter concerns the establishment of the detail legal system of the state-owned golden share in the state-owned company for public welfare. At first, it researches the application doctrine of the state-owned golden share. The result is that it can be applied in two fields, the public utilities and the emerging industry in which the government needs to implement its strategic intents. Then the Author introduces the four principles which we need to obey when we design the legal system of the state-owned golden share in our country, which includes principle of non-discrimination, principle of deterministic, principle of proportionality and principle of transparency. After recognizing the contract nature of the state-owned golden share, the Author designs the procedure of establishment, the content of rights, the way to exercise rights and the time limit of the state-owned golden share. At last, the Author advises the methods to protect their own rights for the two parties, the public and the enterprise in relation with the golden share, whose rights or interests may be affected by the exercise of the rights of the golden share. |
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