Research On The Voting Right Of Preferred Stockholder In China

Preferred stock,is the kind of stock that have priority in some respects relative to common stock.Preferred stock have certain differences in terms of risks borne by shareholders and equity of ownership.The definitions of preferred stock in domestic and abroad are quite different,but the main meaning is generally similar:they all consider preferred stock as a special kind of stock,which have priority in the distribution and settlement of remaining property,but also restricted in participating in corporate governance.As the preference of preferred stock over common stock is dictated by the laws of some countries,shareholders of preferred stock and shareholders of other classes jointly participate in shareholders 'meetings of other classes other than ordinary shareholders' meetings,which imply meaning to the company's name through the exercise of class voting rights.Voting rights of stock;laws of other countries stipulate that shareholders of preferred stock do not usually own voting rights.The voting rights of preferred stock can only be restored when certain statutory or agreed preferences appear.This is the restoration of voting rights of preferred stock.These two types of voting rights for the preferred stock are separately stipulated in the conventional Preferred Stock Pilot Management Measures.This paper is divided into five parts besides the introduction.The introduction introduces the significance of the preferred stock to the development of the company and the particularity of the voting right of the preferred stock shareholders.China's preferred stock system is still at the initial stage of establishment,and there are still disputes in China's academic circles about whether the preferred stock shareholders enjoy voting rights and how the voting rights should be exercised,it is necessary to study the voting system of preferred shareholders in China.The first part defines the meaning of preferred stock and voting right of preferred stock shareholders,and explains the nature of voting right of preferred stock shareholders.The "priority" of preferred stock is reflected in the distribution of interests,and there is a dispute on whether the shareholders of preferred stock have the right to vote or not.This paper holds that the voting right of preferred shareholders is a kind of independent shareholder right,common interest right and control right,just like the voting right of common shareholders,but the nature of control right of preferred shares is restricted,so the voting right of preferred shareholders is also restricted.The second part discusses the legal basis of voting right of preferred shareholders.The principle of equality of shareholders,the principle of corporate autonomy,the principle of good faith,the principle of legal binding and the principle of contract law such as Legitimate expectation constitute the legal basis of voting right of preferred shareholders;The principle of equality of shareholders provides the legal premise for the existence of voting right of preferred shareholders and the principle of corporate autonomy provides the concrete basis for the operation of voting right of preferred shareholders The principles of good faith,legal binding and Legitimate expectation of contract law are the strong guarantee of voting right of preferred shareholders.In the third part,the author mainly studies the legislation of voting right of preferred shareholders and the common practice in the developed countries such as Britain,America,France,Germany and Japan.The legislation of these extraterritorial representative states provides for the scope of application of voting rights in the category of preferred shares,the conditions for the restoration of voting rights of preferred shareholders,the procedures for the exercise of voting rights after they have been restored,the manner in which they are exercised and the legal consequences of their exercise,in practice,there are many kinds of ways to exercise the voting right stipulated by its preferred stock.The fourth part,on the basis of expounding the stage development in the initial establishment of our preferred stock system,summarizes the main contents of the voting right system of our preferred stock shareholders and analyzes the existing problems.China's preferred stock system is embodied in the State Council's "guiding opinions on the trial of preferred stock" and the CSRC's "administrative measures on the trial of preferred stock".The current voting right system of preferred stock shareholders in China mainly includes the scope of matters of voting right of preferred stock,the conditions and time limit for the restoration of voting right,the proportion of voting right of preferred stock and the restoration of voting right,the procedure for exercising voting right of preferred stock shareholders and the legal responsibility for illegal acts.The system has obvious defects,such as only regulating listed companies and non-listed public companies to issue preferred shares,the scope of adjustment is narrow,can not meet the needs of the Investment and financing market;The enumeration mode of the applicable scope of category voting right is not conducive to the comprehensive protection of the rights of preferred shareholders;The provisions on the proportion of voting rights after the restoration of voting rights are not conducive to the protection of the rights and interests of preferred shareholders;the relevant procedures are not clear enough to ensure the effective exercise of voting rights;there is room for elaboration of the Provisions on legal accountability,etc..The fifth part puts forward the suggestion of perfecting the voting right system of our preferred shareholders.At present,the business of preferred stock is still in the experimental range,but in our country's market economy practice,the preferred stock has already broken through the experimental range.The preferred stock system should keep pace with the times and change from being applicable only to the pilot to being universally applicable.Therefore,we should sum up the relevant experience accumulated in the economic practice of the preferred stock market in our country and regularize it so as to bring the preferred stock of non-public companies into the regulation.In order to improve the legal status of the regulation of preferred stock,it is necessary to make provisions for preferred stock in the company law.We can also improve the voting right system of the preferred shareholders by adding "other matters affecting the rights and interests of the preferred shareholders" in the applicable scope of voting right of the category of preferred shares,establishing the principles to be followed in the regulations of the articles of association on the proportion of voting right after the voting right is restored,allowing the voting right restored preferred shareholders to be admitted to the board of directors,clarifying the procedure for exercising voting right of the preferred shares and making detailed regulations on legal liability.