Improve the company's legislation and enhance the competitiveness of the system

◎ Text "Legal person" magazine special writing week

▲ CFP

The issue of corporate governance is accompanied by the separation of corporate ownership and operating rights. The original intention of the design of the company's governance system is to solve the problem of agency costs in order to solve the socialization of the equity of the joint -stock company (public company) Operator) departure from the interests of owners (shareholders). According to the needs of its economic and social development and specific company needs, companies in various countries provide a series of institutional design, including the setting of the company's internal institutions, power distribution and checks and balances, thereby achieving the purpose of protecting the owner.

Improve the compliance system

The company law promulgated in 1993 conducted a systematic system designing the company's governance for the first time. It has played a positive role in protecting the legitimate rights and interests of the company, shareholders and creditors, promoting state -owned enterprises, and promoting the development of the socialist market economy. However, in the past 30 years, the company's governance practice has also faced many problems and challenges, and research and response need to be carried out. In particular, the corporate governance structure designed for the shareholding company based on the separation theory of ownership and operational rights is not completely applicable to limited liability companies.

The company is the core cell of the market economy, and the company's vitality is the source of macroeconomic vitality. Modernization of corporate governance is the foundation of market governance and public governance.

The current company Law was promulgated on December 29, 1993, after December 25, 1999, August 28, 2004, October 27, 2005, December 28, 2013 and October 26, 2018 Five modifications. At present, we are in the sixth round of the company's law. On December 24, 2021, the "Corporate Law of the People's Republic of China (Revised Draft)" (hereinafter referred to as the "Draft of the Company Law"), which was reviewed by the 32nd meeting of the 13th National People's Congress) solicit opinions.

Company governance and improvement is an important proposition in the sixth corporate law amendment. Since the implementation of the company law, the design of the company's organizational structure has not changed greatly. However, in view of the huge number of Chinese limited liability companies, its importance in economic and legal status cannot be ignored. Although the current corporate law has abandoned the board of directors and supervisors by allowing the establishment of executive directors and one to two supervisors, it has certain flexibility, and lacks substantial response to the management model and highly partnership management method of limited liability companies that generally pursue the owner of the limited liability company.

Empower the company governance

The "Recommendation of the Central Committee of the Communist Party of China on the Fourteenth Five -Year Plan for the Development of the National Economic and Social Development and the Two -Five -Year Vision goal" by the Fifth Plenary Session of the 19th CPC Central Committee emphasized that the economic and social development of the "14th Five -Year Plan" period One of the main targets is "the market subject is more energetic" and requires "strengthening the status of corporate innovation subjects and promoting various innovative elements to gather to enterprises" "promotes entrepreneur spirit and accelerate the construction of world -class enterprises."

On the other hand, the company's law's design on the company's governance structure. In 1993, the company law was influenced by the planned economic thinking of the plan, and was branded with heavy order and light management. Although the company's law has experienced 5 revisions, the company's governance structure organizational structure setting requires that it has not been amended for 30 years, which has constituted a highly mature and unshakable ultra -stable system.

Judging from the statistics of the State Administration of Market Supervision and Administration, there are a large number of companies in my country, a wide range of industries, and huge differences in governance demand. On the other hand, the design of the company's governance structure of the company has set up a substantial organizational model for limited liability companies and joint -stock companies. For most limited liability companies that account for most limited liability companies, shareholders' associations, boards, and supervisors are usually "trinity". Even if the corresponding organizational organizations are set according to the requirements of the company law, they cannot get rid of the fact that closed companies mainly rely on shareholders to supervise each other. The amendment of the company's law shall fully consider the characteristics and needs of different types of corporate governance and control, and give the market subject within a certain range of independent choices. Let the company's governance arrangement truly achieve the purpose and original intention of promoting investment in investment, controlling decision -making risks, reducing transaction costs, stabilizing the expectations of all parties, and benefiting shareholders and stakeholders.

Strengthen the party's leadership

2022 is the year of the three -year operation of state -owned enterprise reform. On June 30, 2020, the "Three -Year Action Plan for State -owned Enterprise Reform (2020-2022)", which was reviewed and approved by the 14th meeting of the Central Committee of the Central Committee, requested it Each company's duties, responsible, coordinated operation, and effective check -to -balance company governance mechanisms.

In the chapter of the company's Law Liability Company, a special state -owned company has been set up. However, the concept of "wholly state -owned company" is too narrow, and it is limited to a limited liability company that is limited to the state -owned assets supervision and management institutions of the people's governments at the same level by the State Council or the local people's government to fulfill the duties of investors. Other government agencies represented by the financial department, other government agencies represented by the financial department in financial, cultural publishing, tobacco, postal, and other fields, which have represented the government's duties of investors' duties, have not considered. In addition, a large number of wholly -owned companies invested by state -owned wholly -owned companies have not been included. The State -owned Assets Law issued in 2008, the company law stipulates that it only applies to the issues of a wholly state -owned company, and the expansion is applicable to a state -owned holding company. The company's draft amendment is intended to set up chapters 6, and special regulations on national funding companies. The state -owned wholly -owned company and state -owned capital holding company that state capital contribution is defined as a state -funded company. State Corporation or local people's governments shall perform their duties of investors on behalf of the people's governments at the same level according to law, and enjoy the rights and interests of the investor. The State Council or local people's governments may authorize state -owned assets supervision and management agencies or other departments and institutions to represent the people's government at the same level to perform their duties of investors. The draft provides to adjust and improve the situation of the original company law only on the special provisions of the "wholly state -owned company". However, it is recommended that it can further regulate the wholly -owned and holding subsidiaries invested by the state's investment company at the same time to meet the needs of realistic management. State -owned enterprises are important and key to their national economy. On the basis of improving the governance structure of the general limited liability company's "three meetings and one -story" company, how to further improve the company's company governance of a limited liability company (that is, a wholly -owned company and a state -owned holding limited liability company), which is also a one we must consider important topic.

(The author is deputy general manager and general legal consultant of China Aviation Oil Group Petroleum Co., Ltd.)

Editing ｜ Cui Xiaolin

Edit ｜ Huiningning

School pair ｜ Zhang Bo Zhang Xuehui

This article is published in the "Legal person" magazine in July 2022, the 221th issue of the rule of law latitude and latitude column

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