The Implementation And Perfection Of The Collection System Of Voting Right In Securities Law

The collection of voting right,also called the collection of power of attorney and the collection of agency right,is a sharp weapon to improve the governance structure of listed companies,improve the efficiency of corporate governance and protect the interests of small and medium investors.The difference between the solicitation of voting right and the general proxy of voting right is that the solicitation person is more active,and the solicitation person is induced by the solicitation person to grant his voting right.Solicitors may be entrusted by one hundred thousand shareholders to exercise voting rights at the same time and often involve a fight for control of the company for the purpose of solicitation.This also makes the right to vote once the collection of improper use,it is likely to become a long-term management control of the company’s tools.The new securities law,which came into force on March 1,2020,has incorporated the system into legislative regulations,including provisions on the qualifications of collecting subjects,information disclosure,prohibition of paid collection and liability for compensation,however,limited to the principle of legislation,it is difficult to cover the practice of many specific problems.Starting from the origin and development of the collection system of voting rights,this paper makes a distinction between the collection system of voting rights and the concepts of voting rights agreement,Voting Rights Trust,merger and acquisition of enterprises,and principal-agent,so as to clarify the definition of the collection system of voting rights,it also explains the functions and disadvantages of voting right solicitation from the perspectives of shareholder’s voting right and corporate control right.Then,by using the method of case analysis and comparative study,the author examines the legislative practice and case practice of China’s current voting right collection system,thus revealing the applicable predicament of China’s voting right collection system,that is,the subject and procedure of collection is not clear,the standard of information disclosure is not clear,the burden of collection expenses is not clear,and the relief of shareholders is not perfect.Finally,according to the characteristics of China’s capital market and current legislation,combined with the practical experience of the collection of the right to vote outside China,some suggestions are provided for the localization of the collection system of the right to vote in China.On the regulation of the abuse of the voting right collection system,the author suggests that the qualifications,conditions and relevant collection procedures of the collector should be standardized,in particular,it is necessary to stipulate the holding period when the shareholders initiate the voting right solicitation and the preverification procedure when the Investor Protection Agency and the Independent Director Act as the recruiter.On the issue of information disclosure,the author advocates to establish the standard of information disclosure by distinguishing the voting right collection of general items and special items.On the issue of collecting expenses burden,it is suggested that the system design should be differentiated,that is to say,different expenses compensation rules should be constructed by distinguishing the collectors who initiate collecting activities,the board of directors shall be compensated only if the collection of voting rights is successful,and the shareholders shall be partially compensated if the collection is not successful,the Investor Protection Agency is compensated whether or not it is successful in initiating the solicitation.On the issue of compensation for the civil liability for voting rights,it is argued that the collector’s liability for breach of contract or tort should be investigated according to the illegal matters,the liability for breach of contract is mainly directed against the situation where the recruiter does not attend the shareholders’ meeting or does not exercise the right to vote as instructed by the shareholders after obtaining the authorization of the shareholders,and the liability for tort is directed against the illegal disclosure of information of the recruiter in the collection of the right to vote,in the latter case,the collector may be required to bear the liability for compensation in accordance with the general provisions of the securities law on information disclosure,and the burden of proof of the shareholders being solicited shall be appropriately reduced.Regarding the determination of the validity of the resolution of the general meeting of shareholders,and advocating the treatment of different types of illegal causes,...