| Preference shares are a kind of class of shares.In the past few decades,the theory and practice of preference shares have developed abundantly in China,but the protection system for the rights and interests of preference shares in my country has not been established at the legal level.The current "Company Law" stipulates that my country can issue special shares other than ordinary shares.Subsequently,the "Guiding Opinions on Pilot Preference Shares" issued by the State Council and the "Administrative Measures for the Pilot Preference Shares" issued by the China Securities Regulatory Commission detailed the preference shares.The two laws and regulations have become the main source of law for the protection of the rights and interests of preferred shareholders in my country.At present,the current legislative status of the protection of preferred shareholders’ rights and interests shows that the legal supply is far below the actual demand.The "Securities Law" and the "Company Law" do not contain relevant provisions on the protection of the rights and interests of preference shareholders.The "Guiding Opinions on the Pilot Program of Preference Shares" and the "Administrative Measures for the Pilot Program of Preference Shares" cover the scope of protection of preference shareholders,The legal status is relatively low,and it is difficult to provide comprehensive protection and relief to the rights and interests of preferred shareholders.In judicial practice,there are roughly three types of cases involving preferred stocks: whether a limited liability company can be the main issuer of preferred stocks,the qualitative nature of preferred stock contracts,and the effectiveness of private equity contracts.Regarding the issue of whether a limited liability company can issue preferred shares,different judicial organs have three attitudes: affirmative,negative,and evasive;on the qualitative issue of preferred share contracts,judges can easily identify them as loan contracts;in private equity On the issue of the validity of equity contracts,the judiciary tends to determine that it is invalid.The current legislative situation and judicial disputes reflect the current system defects in the three aspects of the issuance system,the voting system and the withdrawal system in the current protection system for the rights and interests of preferred stockholders in my country.The shortcomings of the issuance system are manifested in the restrictions on the issuers,the investment entities,and the stricter procedural restrictions on the public issuance of preferred shares by listed companies.The defects of the voting system are mainly manifested in the conflict of interest between preferred shareholders and common shareholders in the distribution of dividends and the distribution of remaining assets,and the rules for exercising voting rights.In addition,the withdrawal system of preferred stock shareholders is limited by the principle of capital maintenance and practical factors,which has defects,which makes it difficult for preferred stock shareholders to withdraw from the investment company and achieve the investment goal.There are roughly three reasons for the defects of the protection system for the rights and interests of preferred stockholders in my country and its failure to be established at the legal level: the company law’s adherence to the one-share,one-right rule,the expansionary control of illegal fund-raising and private lending,and the excessive safety of transactions.Emphasize.The one-share one-right rule has been unable to meet the needs of multi-level equity construction,The expansionary control of illegal fund-raising and private lending restricts the company’s normal securities-based financing channels,and the excessive emphasis on transaction security reduces the efficiency of corporate financing.Therefore,the improvement of the protection system for the rights and interests of preferred shareholders in my country should be based on the balance of value,centered on the construction of multi-level equity,respect for the autonomy of preferred shareholders as the normal state,and supplemented by the fulfillment of fiduciary obligations by the shareholders meeting and the board of directors to protect preferred shares.Shareholders’ equity.The improvement of the preferred stock issuance system should focus on authoritative norms,fully guarantee the autonomy of the parties involved in preferred stock investment and financing,and remove restrictions on issuers and investment entities.The categorized design of the issuance procedure only sets compulsory norms in the public issuance,and allows the investment and financing parties to negotiate independently and autonomously in the case of not involving public interests.It is necessary to ensure that the issuance and trading of preferred stocks are within the scope of lawfulness and safety,but also the freedom and efficiency of the creation of preferred stocks.To improve the voting system for preferred stock shareholders,it is necessary to break the inherent rules of one share and one right,build a multi-layered shareholding structure,ensure substantial equality among shareholders,and ensure the balance of equity rights.At the same time,the establishment of a general meeting of preferred shareholders,improve the classification of preferred shareholders’ voting matters,allow preferred shareholders to vote separately to make separate resolutions,limit the proportion of common shareholders’ voting rights,and set seats for preferred shareholders on the board of directors.To improve the exit system for preferred shareholders,it is necessary to ease the restrictions on the principle of capital maintenance,and relax the conditions for exercising the right of preferred shareholders to sell back. |
