Where Is The New Company Law?

Of course, innovation is the soul of reform. Then, where is the new company law, which is of great significance for reform?

To this end, the reporter invited Professor Wang Jiliang, a famous jurist and China Business Law Research Center, a legal expert in corporate governance and equity incentives, Professor Li Xianci, Tsinghua University law school, Professor of company law, Professor Zhang Long from China University of Political Science and Law, Xian Shaojun, and other industry authority of the Academy of Social Sciences, Xian Shaojun, and other industry authorities. "Focusing on company law and listening to famous masters" is interpreted from four perspectives.

A slight comparison of the rules and regulations of the system from the perspective of the rule of law and that of Li Xin can make it clear that the current company law provisions are more than the old ones.

Prof. Li Xianci said that from the formal point of view, the number of revised articles was very large. The total number of the original company law was only 130, and the increase from the provisions to the deletion of the provisions to modify the provisions of about 200.

What is more important is the fundamental breakthrough and innovation of the system and rules.

In the system and rules of the revised Company Law, we can see that there are some breakthroughs in the original system, some are the abolition of the old systems and rules which do not meet the actual needs, and some new systems and rules have been introduced, such as the shareholders' right to know, control and avoidance of voting rights of shareholders and related shareholders.

The most representative one is the system of denial of legal person. Although the new company law draws on the legislation and practice of foreign company law, it also has its innovation: it is not a rule that judges like a rule in judicial practice, but a rise to law and a systematic, complete and explicit provision in the law.

Professor Wang Jiliang also expounded the system innovation from the aspect of the pformation of the main body of the new law service.

The company law of 1993 combined with the background of that time, which contained many contents of the reform of state-owned enterprises. However, due to the confusion between company legislation and the legislation of state-owned enterprise reform, many rules for the reform of state-owned enterprises or state-owned investment entities appeared in the company law, ignoring the general applicability of the company law.

At the same time, the reform of state-owned enterprises is a very prominent problem of their own characteristics. Putting it in other legislation (including company legislation) is not conducive to solving its specific problems.

Therefore, in the revision of the company law, we absorbed the views of the reform of state owned enterprises and the revision of the company law respectively. Apart from retaining the wholly state-owned company, we deleted 14 provisions specifically for the reform of state-owned investors or state owned enterprises.

Because the company law has deleted the provisions set up for the state-owned investment entities and the reform of state-owned enterprises, it has highlighted the applicability of the company law rules, making the company law really become a law that facilitates the establishment of companies by various investors.

At the same time, it has been shown to people that the company law does not recognize the difference between different investment entities in setting up companies and enjoying their rights, and the principle of equality of shareholders is implemented. This has also realized the pformation from the system to the reform of state-owned enterprises, and to facilitate the use of corporate forms by various investors.

The pformation of goals, values and goals from the perspective of philosophy is divided into two points.

First, the company law has changed from the original legal norms and legislative guiding principles that emphasize management, emphasis on norms, and more constraints to encourage investment and entrepreneurship, promote the establishment and development of companies and enterprises, and create more employment opportunities, so as to promote the development of the whole market economy.

The original company law, from the law of economic chaos in 1980s, to the later administration law and then to the law of state-owned enterprise reform, has already had different understanding of company law, emphasizing its different functions in these aspects, and forming the guiding ideology and ideas of the time.

The legislation of this company law emphasizes more than standardization, restriction and management, but emphasizes the promotion, promotion and encouragement, which is a major breakthrough in guiding ideology.

The second point is to strengthen the autonomy of the company, respect the autonomy of the company, and make a reasonable qualitative and positioning of the mandatory and arbitrary nature of the company law.

This changes the situation of excessive compulsion and arbitrariness of the company law in the past, and the situation that the company and the parties have no autonomy. This makes the company law more suitable for the actual needs of the company and the parties concerned.

The specific performance of the Chinese government is to turn many mandatory norms into arbitrary norms.

Professor Wang Jiliang summarized the main performance of these provisions into four points: 1., clear the boundary between the public power of the government and the private rights of the company, and highlight the protection of the company's private rights.

For example, delete the "company under the state's macroeconomic regulation and control, according to market demand, independently organize production and operation" provisions, in order to avoid the relevant state macro-control measures can be directly added to the company's misunderstanding; emphasize shareholders in deciding the position of the company's major matters.

The new company law no longer directly stipulates the quota of reinvestment, but the relevant decisions and relevant procedures prescribed by the articles of association of the company.

Since the constitution is formulated by the shareholders of the company, the essence of the constitution is to pfer the right of decision to the shareholders.

The company adopts the same attitude towards the guarantee of others, and attaches importance to the status and function of the articles of association as the autonomy law in adjusting the internal relations of the company.

On the basis of the provisions of the original company law, the new company law has added 10 rules that can be stipulated separately in the articles of association, which greatly highlights the status of the articles of association, highlights the simplification of the limited liability company, and highlights the characteristics of the company.

For example, the convening of shareholders' meetings of limited liability companies can be applied to summary procedures, and managers are merely set up as organs of arbitrary establishment, all of which are more suitable for the needs of small companies than before, and are in line with the requirements of company autonomy.

From the perspective of investors, the company set up a "threshold" to reduce the company's "threshold". The reporter understands that the minimum registered capital of a limited liability company stipulated by the old company law is RMB 500 thousand yuan, which is mainly based on production and operation and wholesale by commodities, and the company which is mainly based on commercial retail is RMB 300 thousand yuan. Technology development, consulting and service companies are RMB 100 thousand yuan, and require payment at one time.

In the process of revision, it is generally considered that the amount of this provision is too high, which is not conducive to the entry of private capital into the market.

Requiring registered capital to pay in one lump sum is also easy to cause idle funds.

The new company law has made the corresponding revision, one is to cancel the minimum registered capital in accordance with the content of the company's management; two is to allow the company to pay the capital in 2 years according to the specified proportion, of which the investment company can pay in 5 years, the shareholders have to pay only 20% of the registered capital, and the remaining money will be made aside on the date of the establishment of the company; three is the minimum registered capital of the limited liability company to RMB 30 thousand yuan.

In addition, the original company law stipulates that the minimum registered capital of Limited by Share Ltd is 10 million yuan, and the new company law reduces the minimum registered capital of Limited by Share Ltd to 5 million yuan.

The "threshold" of the establishment of the company has been lowered, and its legal status has been greatly improved. Professor Zhang Long pointed out that the new company law is a real private economy promotion law, and an equal company law that treats the private economy and the state-owned economy equally.

He further analyzed that the original company law defined the private (private) economy as a useful supplement to the public sector of the economy. It could only exist and develop within the scope prescribed by the state, and the state should give it necessary guidance, supervision and management.

According to the principle of equal market participants, the new company law eliminates the preferential treatment of the old company law only to the state-owned enterprises, or applies to both the private economy and the state-owned economy.

For example, according to the provisions of the original company law, when a state-owned enterprise is converted into a joint stock company, it can set up a Limited by Share Ltd as an exclusive sponsor, while the ordinary civil subject must reach five.

This regulation has directly led to an irrational stock ownership structure in the stock market today. The problems of embezzlement and misappropriation of listed companies' property and unfair unfair related pactions have also come to a serious constraint on the quality of listed companies.

With this private economy promotion law, the above problems will be solved.

The new company law allows a natural person or legal person to invest in the establishment of a one person limited company whose minimum registered capital is RMB 100 thousand yuan, which has become the highlight of the new company law.

Professor Zhang Long said that in fact, a shareholder's capital contribution accounts for the vast majority of the company's capital, while other shareholders are only a handful of symbolic or minority shareholders who pull their friends and relatives into a limited liability company as a nominal shareholder.

According to the actual situation, the revised company law allows a natural person to invest in the establishment of a limited liability company, which is precisely incorporated into the supervision scope of the company law, and also complies with the development of the form.

In view of the fact that the shareholders of a one man company can easily confuse the company's property with their property, it may damage the interests of the creditors. The new company law provides detailed normative provisions for the "one man company".

For example, a natural person can only invest in the establishment of a one person limited liability company. One person limited liability company should prepare financial and accounting reports at the end of each accounting year and audit by accounting firms. The shareholders of one person limited liability company can not prove that the company's property is solely owned by the shareholders' own property, and they should be jointly and severally liable for the company's debts.

"It can not be denied that this will help encourage investment and entrepreneurship and promote economic development, and the chances of employment and entrepreneurship are greatly increased."

Another notable problem is that in real life, large shareholders of some limited liability companies make use of their control over the company, do not distribute profits to shareholders (especially small shareholders) for a long time, and do not allow small and medium-sized shareholders to consult the company's financial position, resulting in serious damage to the interests of small and medium-sized shareholders.

Li Xianci said that in view of this situation, the new company law stipulates that the company has not allocated profits to shareholders for 5 consecutive years, and the company has been profitable for 5 consecutive years and is in line with the conditions of distribution profit stipulated in this law. Shareholders who vote against the resolution may request the company to purchase its shares at a reasonable price. If the company's financial difficulties deteriorate and the shareholders fail to achieve greater losses even if they fail to reach the bankruptcy limit, and shareholders' board of directors can not make a decision to dissolve the liquidation of the company, shareholders who hold more than 10% of the shareholders' voting rights can request the people's court to dissolve the company.

In order to further improve the protection mechanism for the interests of minority shareholders and facilitate shareholders to understand the actual situation of the company's affairs, the new company law stipulates that shareholders can request access to the company's accounting books. If the company refuses to provide access, the unit can request the people's court to request the company to provide access.

In December 29th of 1993, China's first company law was promulgated. It has been nearly 12 years ago.

There are 230 laws in this company, but there are many deficiencies in the provisions, such as strong principles, poor operability, and many loopholes in the law.

In December 205th of 1999, the Standing Committee of the National People's Congress made the decision to amend the company law, and set up a board of supervisors for wholly state-owned companies.

Since 2000, corporate scandals have been frequent in the world, and the wave of reform of the company law has swept the globe.

The company law is facing major amendments.

According to statistics from the Legislative Affairs Office of the State Council, during the two sessions of 2004, 601 NPC deputies and 13 CPPCC members put forward proposals, motions and proposals for revision of the company law.

In July 5, 2004, the Legislative Affairs Office of the State Council completed the drafting of the draft and sent the draft to the relevant departments.

The terms of the amendment include more than 120 articles, with more than 400 content amended or added.

In February 2005, at the fourteenth session of the ten NPC Standing Committee, the draft amendment to the company law was first submitted for consideration.

In August, there were two deliberations.

In October 27th, the three deliberation was adopted.

In January 1st 2006, the current company law was implemented.