The Research On Legal Problem Of Bondholders’ Participation In Corporate Governance

For a long time, the company law theory adheres to the core of "shareholder center doctrine". Therefore, as the company law theory is an organic part of corporate governance theory, corporate governance is mainly refers to the meeting of shareholders, the board of directors and board of supervisors and the distribution of power between managers and checks and balances process, which in the sense of "governance" inside the company. Obviously, this theory do not take the company’s external governance, and it will rule out other stakeholder in the company internal governance. Even if bondholders are the company’s core stakeholders, but because it is the company’s external person, still not participate in the company’s internal governance rights, only rely on incomplete and not important external governance mechanism,the legal rights and interests of the company’s bondholders is difficult to guarantee. With the development of the theory of company law and corporate governance practices appear more and more difficult to solve the problems, people begin to comprehensive review and in-depth thinking about corporate governance. Strengthen the constraints of the internal governance and checks and balances, improve the company’s external governance mechanism, finally realizes the organic combination of internal governance and external governance, sustainable development is the company must solve the problem.On the one hand, the current law system tend to be associated with the company shareholders interests too much, and protect the legal rights holders of corporate bonds is quite limited. Even if the law involves occasionally, often with shareholders’ interests as the center,give shareholders supreme status, and put the bondholders in the subordinate position. The board of directors of the current corporate governance system, on the other hand, there is a staff ofsystem is not sound, fulfill their duties of the board of supervisors cannot, insider control, and many other serious problems. Visible, allowing the bondholders to actively participate in company internal and external governance in all directions, is not only the reality of its own interests, and improve the corporate governance mechanism, promote the sustainable development of the company needs to move.External market supervision mechanism in our country, therefore, has not really established,the company’s internal governance structure is still not perfect, but the bond market is gradually improve the robust and to British and American bond market in developed countries, it is necessary to draw lessons from the successful experience of foreign mature bond market and rational practice, let the bondholders in the combination of direct and indirect way to participate in corporate governance. Mainly take the following measures: first, improve the system of existing bondholders external governance, mainly is the bondholders conference and bond trustee system. Mainly adopts "improve the legal status of bondholders conference system and bond trustee", "increase the bondholders convener of the meeting", "increase the bondholder meeting permissions", "specific provision bondholders conference resolution principle and the effectiveness of the resolution", "regulations bond holder has the right to change the bond trustee and modify the bond trustee agreement", "regulations bond trustee default dereliction of duty and damage the interest of the bondholders shall bear civil liability to pay compensation", to ensure that bondholders to conduct a comprehensive supervision on company operation and management activities and constraints, and covers the whole process in advance, matter and afterwards. Second, the construction of bondholders director system. Through the clear positioning of bondholders directors, produce, and its right to limit the scope of their functions and powers, to ensure that the company fully exercise autonomy, safeguard the legitimate rights and interests of bond holders themselves at the same time. Third, improve the system of board of supervisors. By adding bond holders supervisors to strengthen the role of bondholders in the company supervision system, so that the bondholders really involved in the corporate governance; Refine the exercise of the functions and powers of the board of supervisors procedures and process, make its operational, to strengthen its supervision function. Four,bondholders derived lawsuit system is established. Not only clear the bondholders derived lawsuit system of the plaintiff and the defendant, the allocation of burden of proof, the principleof litigation right and other related issues, also made clear the scope of bondholders exercise the derivative action.