Further Implementing the Requirements for Equal Protection of Property Rights in the Third Review of the Revised Draft of the Company Law

2023-08-29

On the morning of August 28th, the third draft of the revised company law was submitted for review at the 5th meeting of the 14th National People's Congress Standing Committee, which mainly revised and improved company systems such as registered capital subscription registration, democratic management of companies, strengthening the protection of the rights of small and medium-sized shareholders, and strengthening the norms for controlling shareholders and actual controllers. The Company Law is the fundamental law of China's socialist market economy, which underwent five revisions after its enactment in 1993. This revision began at the 32nd meeting of the Standing Committee of the 13th National People's Congress held in December 2021. It is a systematic revision based on the basic framework and system of the current Company Law, aiming to promote the implementation of major decisions and deployments such as deepening state-owned enterprise reform, optimizing the business environment, strengthening property rights protection, and promoting the healthy development of the capital market. After a year, the 38th meeting of the 13th Standing Committee of the National People's Congress reviewed the revised draft of the Company Law for the second time. During the two reviews of the revised draft of the Company Law, relevant legislative bodies held multiple symposiums to listen to opinions and repeatedly revised and improved the following contents: special provisions on the organizational structure of state-owned companies, system for company establishment and exit, optimization of company organizational structure, improvement of company capital system, strengthening the responsibilities of controlling shareholders, actual controllers, directors, supervisors, and senior management, and strengthening corporate social responsibility. During the process of soliciting opinions on the second draft of the revised draft, some places, departments, experts, scholars, and the public proposed that since the implementation of the registered capital subscription registration system, the cancellation of the investment deadline, minimum registered capital, and initial investment ratio, it has facilitated the establishment of companies, stimulated entrepreneurial vitality, and rapidly increased the number of companies. However, in practice, there have also been situations where the shareholder's subscription period is too long, which affects transaction safety and damages the interests of creditors. It is recommended to further improve the subscription registration system and maintain capital enrichment and transaction safety. The draft specifies that the subscribed capital contributions of all shareholders shall be fully paid within five years from the date of establishment of the company. Some opinions suggest that employees are important stakeholders in the company and should further strengthen democratic management and safeguard the legitimate rights and interests of employees. The draft has made the following modifications: the company should establish and improve a democratic management system based on the basic form of the employee congress in accordance with the provisions of the Constitution and relevant laws; Improve the relevant regulations on employee representatives in the board of directors, except for mandatory requirements for companies with 300 or more employees who do not have a supervisory board to have employee representatives on the board of directors, other companies may have employee representatives among their board members. Some opinions suggest that in order to implement the requirement of equal protection of property rights, relevant regulations on the protection of the rights of small and medium-sized shareholders should be further improved. The draft accordingly makes the following modifications: stipulate that if controlling shareholders abuse their shareholder rights and seriously harm the interests of the company or other shareholders, other shareholders have the right to request the company to purchase their equity at a reasonable price; Improve the regulations for shareholders of limited liability companies to access and copy relevant materials of the company; Increase the provision that the company shall not increase the shareholding ratio of temporary proposal shareholders; It is stipulated that in order to reduce the registered capital of a company, the amount of capital contribution or shares held by shareholders shall be correspondingly reduced according to the proportion of their capital contribution or shares held, except as otherwise provided by law. In the practice of company systems, some controlling shareholders and actual controllers may not hold positions in the company but actually control company affairs

Edit:Zhou Shu    Responsible editor:Wang Chen

Source:rmfyb.chinacourt.org

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