Research On Voting Rights Entrustment Agreement In The Transfer Of Control Rights Of Listed Companies

In the capital market,the control of listed companies is closely related to the stable operation of the capital market,and has always been the focus of institutional supervision by listed companies.In the past two years,listed companies frequently appeared in a new way of transferring control rights through the “Voting Rights Entrustment Agreement”.According to the Wind data system screening,from January 2017 to December 2018,Shanghai and Shenzhen A-shares and the New Third Board Nearly 70% of listed companies in the market using voting rights entrustment to achieve control transfer.Because this method can greatly reduce the cost of investors obtaining control of the listed company,and quickly realize the transfer of control rights and can make shareholders evade the restrictions of the relevant lock-up period and is favored.However,due to the nature of the current voting right agreement,the law does not clearly stipulate that the application of the law is flawed,the regulatory body cannot effectively supervise,and there are a large number of cases of change of control rights in the name of “trust”,which is exacerbated.The instability of the control of listed companies infringes upon the interests of the company and minority shareholders,and triggers a series of problems such as the validity of the agreement,the inconsistency of voting rights,and the protection of shareholders' interests.Therefore,it should be paid attention to by the theoretical and practical circles to prevent risks.occur.The first chapter studies and analyzes the data of the voting control method of the voting rights in China's A-share and New Third Board markets in recent years,expounds the current application status and common situations of the voting power entrustment mode in the capital market,and summarizes the causes of the generation of this method..Due to the gradual separation of “ownership” and “control” of modern companies,our focus on listed companies is no longer ownership,but how to control the company.However,China's current laws and regulations do not clearly define what is the control.More From the perspective of the main body,it is precisely how the controlling shareholder and the actual controller of the company should determine that it is the misplacement of this legislative concept that led investors who want to seek control of the listed company to no longer attach importance to the acquisition of shareholder qualifications and equity.Pursue the control of management and company management decisionmaking power.The article takes 122 control rights change announcements as the analysis sample.Firstly,it analyzes the overall change of control rights of listed companies in China in the past two years.Among them,the small and medium-sized board is more active,and the control rights change methods mainly include direct agreement transfer,indirect transfer and voting rights.Three major categories are commissioned.Then,it further analyzes the 67 announcements that transfer control rights by means of voting rights.It is usually used to achieve the purpose of changing,consolidating control and guaranteeing the rights during the transition period.The phenomenon of “empty voting” and “invisible/variable ownership” in financial innovation,the combination of voting rights is a combination of the two,with voting rights over its own shares to play a role at the critical moment of the company's voting,thus achieving control of the company.Objective,this kind of method is derived from the birth of the local market environment,that is,institutional barriers,the rise of VIE structure and the separation of company ownership and control are the three reasons why this approach is respected.The second chapter mainly analyzes the nature of voting rights entrustment agreement,and its nature is the basis and premise of determining legal relationship and applicable rules.In theory,the voting rights entrustment agreement should be established in accordance with the principle of civil entrustment agency for the convenience of shareholders to exercise their rights.However,through statistical analysis of data,it is found that the existing voting entrustment agreement does not meet the characteristics of the agent,and “delegation” and “transfer” appear.The concept of "trust" is confusing.First of all,in the agreement,the agent does not exercise the voting right in the name of the person,and the legal consequences are not borne by the person.The agreement clearly stipulates that “the voting right shall be decided by the trustee according to his own will”,and nearly 90% of the agreement stipulates the commission.The relationship is a discretionary power,and the company's various proposals can be decided by the trustee.Secondly,the agreement stipulates that the principal irrevocably authorizes the trustee as the sole and exclusive agent,depriving the shareholders of the rights against the “trust” premise established by the agency system.Thirdly,a large number of agreements stipulate that the entrustment period until the principal no longer holds the shares of the listed company,the agreement means that once the entrusting party entrusts the voting right,it means the “transfer” of the voting right,which is tantamount to imposing the shareholders' obligation and restricting the shareholders.The freedom to exercise rights shall be an invalid clause.Through the comparative analysis of the traditional entrusted theory,the voting trust system and the relevant theoretical standards of extraterritorial countries,the essence of the agreement is to obtain the control of the company,and to control the "according to its own",according to the principle of "substance over form" of the contract,The content of the agreement should be analyzed to judge the nature,rather than because of its name “trust agreement”,it is deemed to be an entrusted relationship,and it is clear that the agreement is a voting right transfer agreement,and this method constitutes fraudulent acts against other shareholders,in violation of public policy.Serious infringement of the interests of the principal,and the concept of the company law,should be considered invalid.The third chapter analyzes and demonstrates the main problems of the method on the basis of determining the nature of the agreement.At present,voting rights trusts and voting rights are in a legislative blank.Only the principled provisions for voting rights are entrusted.The research on the connotation,legal attributes,constituent elements and protection of shareholders' interests of voting rights entrustment is still fragmented.The agreement is not conducive to the protection of the interests of the company and shareholders,and should be an invalid contract due to the limitation of the property rights of the equity and the lack of legal basis.On April 13,2018,the Shanghai and Shenzhen Stock Exchanges issued the "Guidelines for the Information Disclosure of the Acquisition of Listed Companies and the Changes in the Equity Interests of Shares(Draft for Comment)",and the situation in which the situation was changed was determined as a concerted action,and there was a control relationship.It can of course be recognized as having a concerted action relationship,but a concerted action relationship is not necessarily a control.In the concerted action agreement,the agreement between the parties may enable the company to be jointly controlled by the concerted action person due to the concerted action agreement,or may be arranged through agreement,and the actual controller is only one of the parties acting in concert,and the two agreements May result in completely different actual controller identification results.The method of “ voting power entrustment” belongs to the latter,and the actual controller is one of the persons acting in concert,even if it follows the relevant restrictions of the person acting in concert,but the control has changed,and the investor has reached The purpose of the acquisition is still not effective in preventing the turmoil of the company's control rights caused by this kind of form.Then the system regulations will lose the supervision function and value,and still cannot effectively prevent and supervise,resulting in weak supervision.In addition,this method will cause huge agency costs.The content of “voting of voting rights” usually includes a series of rights such as the right to propose,the right to resign and the right to vote,and the voting rights of the shareholders' meeting.There are even agreements that “the entrusting party will no longer own The board of directors,and the appointment and dismissal of the directors are delegated to the trustee.This is tantamount to the “trustee” selecting himself as a director and the “agent” principal to exercise his rights,and the granting of such rights will enable the directors to surpass them.The statutory management authority controls the decision-making of the shareholders' meeting and realizes the control of the company.This also violates the director's loyalty and diligence obligations to the company,infringes the interests of small and medium-sized shareholders,and becomes a difficult problem for listed companies.The fourth chapter combines the above data and theoretical analysis to propose relevant regulatory countermeasures for the change control of this mode.Through preemptive prevention,supervision in the event,and after-the-fact relief to achieve full regulation.Standardize the voting power entrustment system,clarify that the entrustment must have a time limit,and must not be entrusted with compensation,and should also give the shareholders the corresponding right of revocation to protect the rights of shareholders;construct a voting rights trust system,recognize the “double ownership” attribute of the trust property,that is,the trustee holds The right to vote must be based on shares.It is modelled on the Anglo-American law.The trustee is the owner of the common law.The principal is the owner of the equity in equity,which is also in line with the right to vote.The equity is the foundation of its existence.The reason should be detailed in the "Company Law" and "Trust Law";strengthen the actual controller's fiduciary duty,and clarify the actual controller's disclosure obligations,rather than only the listed company to disclose the relevant information of the actual controller.In the matter,increase the intensity of information disclosure,implement the standard measures of the company's internal review and external disclosure,strengthen the independent status of the board of supervisors,and its members should be separated from the board of directors and other company executives,improve the rules of procedure,and prevent the controlling shareholders.Or the major shareholder can use its spokesperson to control and distorted the meaning of the company's supervisory authority,so that the company's supervisory authority becomes a major shareholder,and the platform that controls the improper interests of the shareholders is legalized.The company's supervisory board reviews the shareholders' voting rights entrustment agreement and issues relevant legality.The opinion papers prevent shareholders and directors from using control to infringe on the interests of the company;for directors,they can also establish a responsibility and transfer system for “responsibility and responsibility” to facilitate the conversion of violating directors into “stained witnesses”,thereby realizing the majority shareholder Effective detection,supervision and investigation of the actual controller.After the event,the shareholder remedy should be broadened and the litigation threshold should be lowered.That is,as long as the shareholder has the shareholder qualification at the time of the prosecution,the lawsuit can be prosecuted,and then the actual controller's control and the basis of control are determined,and whether the violation of the law and the company's articles of association is discretionary;A series of systematic measures,such as increasing penalties and increasing illegal costs,with a view to achieving effective supervision of the problem.The change of control rights in the form of “voting power entrustment agreement” shall be regulated by detailed rules and regulations,and the act of implementing the transfer of voting rights in this way shall be invalidated and recalculated for the specified period of the relevant restricted sales period.If the original listed company's general meeting of shareholders agrees to transfer the control right,the transfer price will be compared with the fair market price.The part of the market price that is more than the market price should be shared with the company's shareholders,and if it is lower than the market price,it should be paid back.Secondly,the type agreement signed by both shareholders shall be submitted to the securities regulatory authority for review,and a special legal opinion shall be submitted to explain its influence on the control.The securities regulatory authority may conduct substantive examination with reference to the relevant provisions of the reorganization and listing.If the conditions for reorganization of the listing are met,the relevant procedures shall be fulfilled.Thirdly,if the regulator can require the shareholder to have more than one vote of the number of shares held,it should immediately disclose the changes in the relevant economic interests,and require all shareholders to register and disclose on the register of shareholders when the proportion of voting rights reaches 5% or more.And publicize the relevant information through the media and website.In addition,in the regulatory practice,the self-regulatory and disciplinary actions of the major shareholders who violated the regulations were appropriately strengthened,and the integrity files were used to conduct statistics on the changes in the equity of the actual controllers of the listed companies,and to strengthen the supervision over the change of control of the actual controllers.