Research On The Protection Of Rights And Interests Of Non-State Shareholders In Mixed Ownership Enterprises

Against the background of China’s economy entering new normal,state-owned enterprises encountering difficulties from large to strong,and the growing demand for private capital to broaden investment channels,the Decision of the Central Committee of the Communist Party of China on Several Major Issues of Comprehensively Deepening Reform adopted at the Third Plenary Session of the 18th Central Committee in 2013,put forward the idea of "actively developing mixed-ownership economy and allowing more state-owned and other-owned economies to develop into mixed-ownership economy",which kicked off the phase of deepening and accelerating the SOE mixed ownership reform.In fact,mixed ownership is not a new concept,it was already proposed at the 15th National Congress in 1997.Although in theory,mixed ownership has macro and micro concepts,the current round of SOE mixed ownership reform refers to the conversion of SOEs from the micro level into mixed ownership enterprises formed by the main body of public capital and the main body of non-public capital jointly contributing.This is conducive to giving full play to the comparative advantages of the capital of both sides,enhancing the dominant role of the state-owned economy,better improving China’s basic economic system,and optimizing resource allocation.However,the complementary advantages and synergistic effects of the two capitals must deal with the conflicts in the process of capital mixing and corporate governance caused by the different nature of capital ownership,specifically:the conflict between the commonweal of state-owned capital to achieve social goals and the profit-seeking nature of non-state-owned capital to maximize profits;the conflict between the reluctance of the state-owned capital side to let non-state-owned capital enter due to the enjoyment of monopoly benefits and the fear of losing state-owned assets,and the fear of non-state-owned capital to enter due to the lack of voice;the conflict between the logic of government power of state-owned capital and the logic of property rights of non-state-owned capital in the process of corporate governance,etc.These conflicts affect the unity of the company’s business goals,governance philosophy,and decision making,hinder the process of SOE mixed ownership reform,and increase the risk of non-state shareholders’ rights and interests being damaged in the conflict.Compared with state-owned capital,non-state-owned capital is weak and has less voice,and its investment in state-owned enterprises faces the risk of difficulty in exercising shareholders’ rights effectively,the risk of losing private capital due to the tunneling behavior of controlling shareholders and the immoral behavior of management,and the risk of difficulty in realizing the relief after the rights are damaged,etc.These risks have increased the fear and conservative psychology of non-state shareholders,who are afraid to participate in the SOE mixed ownership reform,and hinder the smooth implementation of the mixed reform.The reasons for this include the low status of non-state capital property rights,the pyramidal holding structure of SOEs,insider control,the "one share alone is too big" shareholding structure,and the administrative governance within SOEs,etc.In view of the risks and causes faced by non-state shareholders investing in state-owned enterprises,the system for protecting the rights and interests of non-state shareholders should be improved in the following five aspects:to transform the way of exercising the rights of the financiers of state-owned shares,establish state-owned capital investment and operation companies to exercise the rights of shareholders,transform the functions of SASAC and the way it performs its duties,and form a system of supervision of state-owned assets with the management of capital as the main focus;to establish an effective shareholding check and balance structure,reduce the proportion of state-owned shares,introduce a preferred share system,and choose to adopt a two-tier shareholding structure model to break the situation of "one share alone is too big";to improve the modern governance structure of the enterprise,promote a collaborative governance model between state-owned and non-state-owned shareholders,implement a professional manager system,establish a market-oriented employment and incentive mechanism,and realize the organic integration of the Party organization and corporate governance;to combine the exercise of rights with the remedy of rights,to ensure the equal exercise of rights by non-state shareholders,and to improve the information disclosure system of state-controlled enterprises and the shareholder derivative litigation system in the Company Law;to improve the shareholders’ exit mechanism,dock the regional equity market and property rights trading market,guarantee the effective exercise of dissenting shareholders’ right to repurchase requests,prevent the loss of assets of all parties and better protect the rights and interests of non-state shareholders.