Protection Of Minority Shareholders’ Rights And Interests In Bankruptcy Reorganization Of Listed Companies

After the listed companies have reached the bankruptcy threshold,they often choose bankruptcy reorganization to get out of trouble and regain their life.This process usually involves the interest game between the debtor and the creditor as well as between the internal subjects of the debtor and the creditors.Some scholars believe that the value of shareholders’ equity of companies that reach the threshold of bankruptcy is zero,so only the protection of creditors’ equity should be paid attention to,but there is no protection of shareholders’ equity.However,theory and practice show that compared with other enterprises,even if the listed company reaches the bankruptcy threshold due to its inability to repay the debts due and insolvency,its operating value may be much higher than the liquidation value,and its shareholders’ equity is not zero.Therefore,by injecting new capital,equity adjustment,debt-for-equity swap,debt relief and other restructuring plans,the company is likely to get out of trouble and achieve a win-win situation for all parties.From the perspective of China’s legislative practice,although some laws and regulations have proposed that the shareholders’ rights and interests of listed companies in bankruptcy reorganization should be protected,on the one hand,the existing provisions are too principled,on the other hand,these provisions fail to notice the difference between major shareholders and small and medium-sized shareholders of listed companies and intervene to adjust.Because small and medium-sized shareholders are at a disadvantage in the game with large shareholders,their rights and interests may be infringed to varying degrees in the bankruptcy reorganization of listed companies.In the absence of institutional guarantee,it is difficult to effectively protect the rights and interests of small and medium-sized shareholders.For bankruptcy reorganization,the balance of interests in the bankruptcy reorganization of substantial justice,promote the effective use of social resources and avoid the bad effects of the failure of the reorganization of listed companies,it is necessary for the protection of the rights and interests of minority shareholders in bankruptcy reorganization of listed companies of the researches on the status quo analysis,and further explore the causes,through draw lessons from other countries and regions and effective legislative experience,combined with China’s national conditions,find the bankruptcy reorganization of listed companies in the feasible methods of protection of rights and interests of minority shareholders.In addition to the introduction and conclusion,this paper consists of the following four parts:The first part is an overview of the protection theory of minority shareholders’ rights and interests in the bankruptcy reorganization of listed companies.The protection of minority shareholders’ rights and interests in the bankruptcy reorganization of listed companies originated from the dispute over whether the value of shareholders’ rights and interests should be preserved or scrapped in the bankruptcy reorganization.Some scholars believe that once an enterprise reaches the threshold of bankruptcy,the equity value of shareholders is zero,and shareholders’ equity is in the worst "state",so it is unnecessary to protect shareholders’ equity.However,the mainstream view holds that the "shell resources" owned by listed companies have huge operating value.Through bankruptcy restructuring,the reorganization surplus higher than the liquidation value can be created,so that the debtor’s shareholders’ equity can be partially preserved.In addition,creditors and minority shareholders have the same goal of pursuing the maximization of the reorganization residual in the bankruptcy reorganization process,so the protection of their rights and interests is compatible,so it is legitimate to protect the rights and interests of minority shareholders.In addition,the protection of minority shareholders’ rights and interests in the bankruptcy reorganization of listed companies has substantial theoretical basis.Firstly,as a vulnerable group,minority shareholders’ rights and interests are protected by the principle of substantial equity.Secondly,the interest conflicts in the bankruptcy reorganization of listed companies are diversified and complicated.In order to resolve the conflicts and realize the interest balance in the bankruptcy reorganization,it is inevitable to give consideration to the protection of minority shareholders’ rights and interests.Finally,medium and small shareholders bear more equity risk than large shareholders in the bankruptcy reorganization,which essentially violates the principle of equity equality,and should be "biased" to protect them.The second part is the status quo and problems of protection of minority shareholders’ rights and interests in the bankruptcy reorganization stage of listed companies in China.Followed the launch of the bankruptcy reorganization,bankruptcy,reforming management mode,the reorganization plan of shareholders’ equity adjustment scheme,reforming plan with perform this context,the empirical research scheme of bankruptcy reorganization of listed companies in China,you can find the problems existing in the protection of the rights and interests of minority shareholders: first of all,the bankruptcy reorganization of start-up stage,often be the creditors,in one of the decisive at this stage and no chance to participate in small and medium shareholders;Secondly,in the stage when the bankruptcy reorganization management mode is determined,it is difficult for minority shareholders to have the opportunity to express their opinions,and it is possible for major shareholders to exploit minority shareholders’ rights under the debtor’s self-management mode.Thirdly,in the formulation stage of shareholders’ equity adjustment plan,the framers mostly follow the formal equality,adopt the non-differentiated equity adjustment plan,ignore the major shareholders’ fault liability,so that the rights and interests of minority shareholders are transferred unfairly.Finally,a vote with the reorganization plan by stages,small and medium-sized shareholders’ voting rights become a mere formality,difficult to substantial influence on the results,and even reorganization plan approved by the vote did not,the court also ruled by compulsory,even sure reorganization plan is unfair,small and medium shareholders can only passively accept the result of the shareholders’ equity adjustments.The third part is the institutional causes of the damage to the rights and interests of minority shareholders in the bankruptcy reorganization of listed companies in China.First of all,the enterprise bankruptcy law does not guarantee the participation right of small and medium-sized shareholders in bankruptcy reorganization,which is manifested in the lack of bankruptcy reorganization application right and reorganization plan proposal right of small and medium-sized shareholders,and the unclear content and exercise of voting right.Secondly,under the mode of debtor’s self-management,there is insufficient regulation of fiduciary duty of the management,which is manifested in the absence of fiduciary duty of the management to shareholders,and it is difficult to effectively restrain the infringement of the rights and interests of minority shareholders by the management under the control of major shareholders.Thirdly,the information disclosure system of the bankruptcy reorganization of listed companies is not perfect,one is the lack of standards for information disclosure,the second is the content,scope and degree of information disclosure need to be clear,the third is the unreasonable time of information disclosure,the fourth is the responsibility of the information disclosure obligation is unclear.In addition,the applicable standard for compulsory approval by the court is vague,and due to other factors,the court is difficult to achieve absolute neutrality.Finally,there is a lack of relief mechanism for the rights of minority shareholders in the bankruptcy reorganization.First,minority shareholders lack the right of objection in the bankruptcy reorganization process;second,minority shareholders lack the right of reasonable litigation when their rights and interests are damaged.The fourth part is the improvement of the protection system of minority shareholders’ rights and interests in the bankruptcy reorganization of China’s listed companies.The main points are as follows: first,to clarify and improve the reorganization participation right of minority shareholders,including giving minority shareholders the right to apply for reorganization,giving minority shareholders the right to propose appropriate reorganization plan,and clarifying the content and voting rules of voting rights;Second,we should improve the information disclosure system for the bankruptcy reorganization of listed companies,ensure that the information disclosure is sufficient,accurate and timely,and clarify the responsibilities of information disclosure agents,and set strict conditions for the continued listing after the bankruptcy reorganization.Third,clarify the fiduciary duty of the management under the debtor’s management mode.If the violation of fiduciary duty causes the improper loss of rights and interests of minority shareholders,it shall bear the corresponding responsibility;Fourth,it requires the court to apply compulsory approval prudently.In addition to clarifying the applicable conditions of compulsory approval,it should also conduct necessary examination before compulsory approval.Fifth,a small and medium shareholders committee representing the core interests of small and medium shareholders should be set up to fully participate in the bankruptcy reorganization process of listed companies,exercise rights on behalf of small and medium shareholders,and express their opinions and appeals.