The Boundary Study On The Board Of Directors Authorized By The Shareholders' Meeting

The general election of the board of directors of Gree Electric Appliances has brought about the reflection on “shareholder activism” in China.In around the early seventies of the 20 th century,“shareholder activism” has appeared in America with the growth of institutional investors and economics theories about the stock rights' intension.What “shareholder activism” reflects is the interest conflicts between the management layer and shareholders.The conflict between strong shareholders and minority shareholders is more apparent under the highly concentrated stock structure in our country,leading abnormal “shareholder activism”,which results in the thinking of the way shareholders exercise right.As the indirect way of exercising right,the authorization of shareholders' meeting needs to adjust the relationship between shareholders' rational indifference and the corporation's efficiency.Therefore,there is need regulating the border of the authorization of the board of directors given by shareholders' meeting.This essay is divided into 4 sections,excluding the introduction and conclusion.This essay takes the principle,the maintenance of the fundamental right disposal structure,as the baseline of the authorization of the board of directors given by shareholders' meeting,as well as the precondition for understanding accurately “the other authorities stipulated by the corporation charters”which stipulated in ?Company Law?as the 11 th item of 47 th item.The revolution of the way thatshareholders exercise right,the board of directors' activism and the pursuance of corporation efficiency can never be the reason to harm this baseline.Therefore,it is necessary to define corporation interior fundamental rights and management rights,and confirm corresponding corporation resolution system to buildthe rational border of the authorization of the board of directors given by shareholders' meeting.This essay is divided into 4 sections,excluding the introduction and conclusion.Section one is divided into two parts,mainly clarifying the basic principle,the maintenance of the fundamental right disposal structure,to affirm the border of the shareholders' meeting authorization.The first section discusses thefundamental right disposal structure as the foundation of deal,which mainly analyzes the reflection of investors' cooperation foundation,corporation system foundation and the autonomy of authorized subject.What investors' cooperation foundation emphasizes is that the basicstructure of corporation right is the deal requirements for shareholders to establish and join corporation.What corporation system foundationemphasizes is that the foundation structure of corporation right forms the foundation of corporation system.What the autonomy of authorized subjectemphasizes is that the fundamental rights' exercise must reflect the will of shareholders' meeting.The second part analyzes the fundamental rights and management rights in the authority assignment of shareholders' meeting and board of directors,which considers that there are two attributions existing in corporation regulations.The organization attribution determines that the fundamental regulations of shareholders' meeting in each country are relatively volitional,while the political attribution determines the difference between the fundamental rights and management rights in the shareholders' meeting's decision.It also lists the fundamental rights and management rights in the shareholders' meeting's decision under the shareholder centralism in our country.The second section is also divided into two parts which are mainly about the legitimate alteration of shareholders' meeting and board of directors' fundamental right disposalstructure.The maintenance of the fundamental right disposal structure is the fundamental principle for the authorization of the board of directors given by the shareholders' meeting.However,it does not mean that the shareholders' meeting has no access to authorize the board of directors the authority by resolution or modifying charter,which requires considering various questions of the legitimate alteration.The first part is in the perspective of the regulation of procedural due process,differentiating the shareholders' meeting authorization procedure.The fundamental rights should be agreed by all shareholders if authorized according to the charter or the equal exit system so that can be set up.The board of directors can be authorized the other rights through resolution if it is not the fundamental rights.The second part starts with the regulation of fiduciary duty to claim that fiduciary duty is the key factor to maintain the fundamental structure of corporation right and protect minority shareholders' benefit,requiring that the shareholders' authorization should not conflict with the strong shareholders' fiduciary duty and the board of directors' fiduciary duty.Otherwise,it will be invalid.The third section discusses the proficiency regulation as the auxiliary judgement,taking the proficiency regulation as the complement for the principle of the maintenance of the fundamental right disposal structure.Authorization can be made referring to proficiency regulation if obeys the principle of the maintenance of the fundamental right disposal structure.The forth section analyses the concrete rights of cases for the border of directors,mainly based on the fundamental principle of shareholders' meeting's authorization and the specific regulation of changeability.This section is divided into 3 parts.The first part mainly focuses on the analysis of the power of directors' appointment and removal.Based on the case of the competition for the controlling power in Gome,this essay holds the opinion that the power of directors' appointment and removal is the basic right of the shareholders' meeting,which is conflicting with strong shareholders and directors' fiduciary duty,so it's not properly authorized to the board of directors.The second part focuses on the power of modifying the charter.Through case analysis,it is believed that the power of modifying the charter is the fundamental right of the shareholders' meeting.It will severely shake the fundamental right structure of corporation and relevant people's benefit if easily authorized,so that it should be reserved definitely.But it doesnot exclude the situation which the board of directors can be authorized the power to modify charterThe third part mainly focuses on the power of agreement on obtaining the commercial chance for the corporation.Through cases analysis,it is believed that the power of agreement on obtaining the commercial chance for the corporation is not related to the fundamental right structure of corporation,which does not belong to shareholders' fundamental right as well.The authorization from the shareholders' meeting is not conflicted with the principle of the maintenance of the fundamental power disposal structure,but it needs to be regulated according to the procedural systems such as disclosure or avoidance.