公司治理与股权结构理论:Corporate governance and ownership structure the

股东大会决议作为一种团体行为，其效力是否被法律所承认涉及到多方当事人的利益，股东身份是股东行使诉权的必要条件。根据世界大多数国家公司立法的规定，股东直接诉讼的主体通常都为公司的股东，只要对公司决议具有诉讼利益的任何股东均可对有瑕疵的公司决议提起诉讼。

From the date of the company arising from the system of corporate governance is to jurisprudence , and economists have been keen on the subject of the study. Currently corporate governance issues are mostly dual structure of phase separation of ownership and management by the company generated . This proposition was first proposed by Berle and Means professor. In 1993 they released "Modern Corporation and Private Property ," a book to prove " all separation and control " (separation of ownership and control) of the Companies Authority and operated by a conflict of interest with shareholders consequent corporate governance proposition States is still the center of discussion of corporate governance and legal reform. [ 1 ] Since the 20th century , equity firms increasingly fragmented internal corporate governance model to the " Board of centrism " shift from " general meeting of centrism ." This means that the status of the company directors and governance activities increasingly improved, and the opportunity to express the will of the shareholders , but increasingly limited. In practice, more performance is the major shareholder are both directors, supervisors , managers and other positions , they use a special status in the management of the company , contrary to its obligations as a good administrators abuse , harm the interests of the company and minority shareholders . The minority shareholders , or the amount of shares due to restrictions by its content , can not get to compete with the power of large shareholders in corporate governance structure, resulting in difficult to maintain the legitimate rights and interests through the company's internal relief mechanism . In the case of the development of the company board of directors has gradually become the center of power , how to protect the legitimate rights and interests of minority shareholders, how to prevent directors, managers , senior managers abuse of power has become a national company legislation and practice of efforts to solve the problem.

 

Model of corporate governance is closely related to the form of ownership structure , different ownership structure produce different model of corporate governance , legal issues raised correspondingly different. In other countries, the ownership structure is primarily a business concern theoretical proposition economists , economists as the logical premise of the ownership structure of theoretical research enterprise for a long time . Although many studies and literature on the ownership structure is still made ​​by economists , but the problem is no longer the shareholding structure of the patent economists , and slowly entered the study scope of legal scholars. However , our current ownership structure will study a variable as corporate governance is also limited to the economics profession . Our economists began to reveal the Chinese company is characterized by a strong concentration of ownership structure , under this ownership structure, control problems between the shareholders and the general shareholders' equity balance protection of the increasingly prominent , but economists improve the corporate governance structure through equity efforts can only improve on the shareholding structure itself , and by building and improving the legal system in order to achieve effective protection of the general shareholders' equity of the tireless efforts of the academic effects also need law .

 

According to the research scholars , the ownership structure is the ratio or relationship equity " account for each shareholder of the company, which has two meanings : one is funded ratio scale structure that shareholders invested in the total share capital embodied ; Second, the right relationship that shareholder rights allocated according to the proportion of their capital relations in the control of the company in the . " [ 2 ] The former focuses on the economic significance of the ownership structure , which focuses on the legal significance of shareholding structure. This article refers to the ownership structure refers only to the latter , only the right to investigate the ownership structure of the allocation problem .

 

Ownership structure can be divided into two types : one is dispersed ownership structure, the ownership structure is more common in Britain and the U.S. company ; Second concentrated ownership structure, the ownership structure of most of the world equity types. Analysis of the company's shareholding structure of modern , generally considered the ownership of shares in the company is highly fragmented , with emphasis on control of the Company and therefore turned to professional managers from investors. But then some of the empirical research but then challenged the traditional understanding that in addition to countries with good shareholder protection measures , there are few large companies shareholding structure is very fragmented. In dispersed ownership structure , the separation of owners and operators , the management company who enjoy the right to the greatest extent , because inconsistent with the interests of owners and managers often generate agency problems in corporate governance . Most companies in Britain and other countries , for lack of oversight problems caused by dispersed shareholders to replace the supervisory system and the introduction of performance-based pay system managers to solve agency problems between owners and managers . In the concentrated ownership structure , the control of the company often lies in the hands of a few , these few people may include directors , senior management, controlling shareholders , etc., but in reality these people tend to be fairly close relationship with people , so they exercised options content tends to be consistent , so there controlling shareholders and the general shareholders inequality. At this point the biggest problem of corporate governance is no longer the agency relationship between owners and managers , but how to control the controlling shareholder of the exploitation of minority shareholders' rights issues.#p#分页标题#e#

 

Analysis of the shareholding structure of the company , mostly concentrated ownership structure , in which the listed company is particularly prominent. Features ownership structure of listed companies showed the following aspects : First, tradable shares of listed companies accounted for the majority of the total ; Second, the state-owned shares has been in a holding position ; Three is a very high proportion of corporate shares . More specifically, the issue of shareholding structure of the Company arising from the following aspects : First , China's " Company Law" and " Securities Act " adopt the principle of "one share , one vote" , which means a high concentration of the shareholding structure of the large shareholders, " dominance" , so that it will direct the company will rise , and the wishes of the minority shareholders are often ignored. Secondly, the major shareholders control the board of listed companies. In accordance with "Company Law" Shareholders' Meeting has the right to nominate board members. Therefore, in highly concentrated ownership structure , the board can easily become the largest shareholder of the Board at this time, the independence of the company's operations would be threatened. Finally , a major shareholder controlled companies listed on the Board of Supervisors . According to the "Company Law " stipulates that the Board of Supervisors is the supervisory authority AG company , the shareholders' meeting to nominate a member of the Supervisory Board , which created favorable conditions for large shareholders control the board of supervisors , and the minority shareholders of the company's operations is difficult to achieve effective supervision. Based on the above analysis, the concentration of the ownership structure of the company, enough to make major shareholders to decide on any operating and supervisory authority , the role of minority shareholders in the company's decision-making and operational processes can be described as minimal. In this form of company , the interests of minority shareholders is difficult to get effectively maintained , the controlling shareholder can easily damage their legitimate rights and interests , the company is no longer a contradiction contradiction between all shareholders and managers but rather use the controlling shareholder personal gain and to protect the interests of the company or other shareholders conflicts of control, the controlling shareholder of the abuse of power at this time control , suppress the controlling shareholder moral hazard become the biggest obstacle to the protection of minority shareholders' rights, abuse of power and control of the controlling shareholder , the controlling shareholder of moral hazard inhibiting effective mechanism that is legally binding . Specifically, the legal norms can be suppressed from the controlling shareholder of the abuse of power in three aspects : First, the legal norms to limit the controlling shareholder can take control of the cost and difficulty by controlling shareholders ; Second , legal norms can affect the controlling shareholder content- control rights to control access to the controlling shareholder ; Third, legal norms can be constrained by the controlling shareholder of the company employees affected organ tissue content and level of participation . Which gives shareholders the right to appeal that direct action is the controlling shareholder of an effective way to conduct legal norms constraints. Shareholders can sue for damages their legitimate rights and interests of the controlling shareholder , to a certain extent, increase the cost of controlling shareholder abuse of control , thereby reducing moral hazard and prevent damage to the interests of minority shareholders .

 

Since the 1980s , the world has entered a round of tax reform wave. Personal income tax reform to broaden the tax base which is mainly manifested in the following two aspects : the first is to broaden the extension , which is to broaden the tax ; followed broaden connotation , that is, reducing various tax incentives. I think that these two aspects can be to broaden the tax base , plug tax loopholes.
 

First, the current state of our welfare is not taxed , so in terms of broadening the tax base of the extension , the measures are the most effective and easy to attach welfare tax. Since China adopted the classification of income tax system mode , for each positive taxable income were cited , but in law enforcement , this list will make some difficult taxable income included the scope of taxation . And, for the payment of its own funds if such units subsidies , in-kind benefits, and workers received , securities and other income should be included in the scope of taxation is controversial . This situation exists for the taxpayer provides the possibility of tax avoidance . Due to the tax on fringe benefits tax provisions are not clear , making the taxpayer avoidance performance in this area is particularly prominent. What is the additional benefit of it ? How do we define ? Far, there is not a unified view. The usual approach is to define it as other than wages and salaries due to the monetization of employees have provided services to be provided or obtained for all interests. Additional benefits have money , goods or services in the form in general , but in kind , and the most common form of currency . Can be expressed as specific companies or institutions to provide free medical care , transport, housing benefits, free lunches for employees, a bathroom , a gym and other public facilities , and so on . Theoretically, if the fringe benefit tax will cause employees are not allowed to obtain a considerable distortion compensation in form . Employer benefits in the form of fringe benefits account for a larger share ( cash less ) , it will have a greater economic distortions and on the income tax base erosion. Additional benefits and no taxes will cause a certain income groups among the different income groups or non-uniform distribution , like the distribution of the tax burden does not match with the original intention of the legislator . There are indications that high- income earners compared to low-income people are more likely to get fringe benefits , and this part of the tax group is more capacity and conditions , which means that , if the additional tax benefits will widen unfair income distribution . Therefore, it is necessary for the fringe benefits tax. In fact, some foreign countries such as Australia and New Zealand, the country early in the 1980s had begun to fringe benefits tax it. And generally considered different , they are not on the staff benefits are taxed , but only on the fringe benefits tax levied on employers alone and ourselves. In our case, since the personal income tax law which " wages and salaries " project had already been included in the fringe benefit tax category , there is no need for a separate taxing fringe benefits as long as the resulting sum to total personal income which can be imposed .

 

Secondly, in terms of broadening the tax base connotation , mainly to reduce or cancel such a variety of tax deductions , exemptions , credits and other tax expenditures as specified in the Income Tax Act . China's personal income tax law is not only tax relief policies more, and loopholes . First, numerous tax breaks , tax cuts have a duty there , and some of which classifies unclear, such as subsidies , allowances, bonuses and other exempt items would be difficult to define, bad master . Followed by the tax deduction messy unclear, proportional deduction , individual deduction , deduction , and so fixed . And in addition to the tax , had done a lot of individual preferential tax provisions , making the already cluttered more preferential tax policies are not standardized . Therefore, you should not standardized for tax relief tax incentives for further specification or deleted, and modified as appropriate for Necessary reserved .

" No relief is no right ," Throughout the national legislation , all provisions of the shareholders' rights at the same time provides rich content shareholder litigation system , in order to achieve the legislative purpose of the protection and the rights of shareholders . Shareholders have the right to appeal is the primary condition of shareholder litigation shareholder Without this prerequisite , the shareholders will not be eligible to the courts . According to the Company Law Litigation theory and the theory of shareholder equity shareholders of the right to appeal refers infringed its right to apply to the court according to the law in order to protect their legitimate referee interests . The right of appeal includes two aspects , one is the right to appeal procedural sense, refers to the plaintiff is entitled to ask the court to exercise judicial power , in order to initiate proceedings to resolve disputes of rights ; Second, the right to appeal the substantive law sense refers to the plaintiff specific legal status of any claim or effect on the substantive law . Both constitute the complete right to appeal directly to shareholders litigation .

 

But why shareholders entitled to the right to appeal it? Academics from two angles substantive law and procedural law on the legal basis for starting the shareholders the right to appeal generated a lot of research . In terms of substantive law , mainly , " said shareholder equity " and " Company Contract" two views . [ 1 ] The former dual structure of corporate governance from companies separation of ownership and management of starting a business that the company is a form of separation of ownership and management generated . Shareholders are the ultimate owners of the company , but the limited liability shareholders desire , the law would give the company an independent personality , giving shareholders the right to operate the shareholders and shareholder rights restrictions . In theory, the damage caused by the company's interests will inevitably harm the interests of the shareholders , so shareholders can sue based on the fact of damage . The latter property departure from the company that is the essence of the status of the beneficiary shareholders , the shareholders may exercise this position requires companies the right to sue . According to this theory , the individual shareholders, directors , senior management, controlling shareholders and other forms of contract with the company to produce a series of association , the association is a balance of interests between the stakeholders of the contract process. When the legal relationship between them and adjust the company shall be bound by the contract , resulting in damage to the legitimate interests of shareholders disputes , shareholder lawsuit can be filed directly to shareholders based on tort litigation or default.

 

From the perspective of basic procedural law , civil procedure law theory interest litigation theory and the theory of proper party shareholder litigation provides direct support for the procedural law . Interest litigation is when civil rights are being infringed or the occurrence of civil disputes with others, requires the use of civil proceedings shall be the necessity of relief . [ 2 ] interest litigation is due to the legal entity or entities to realize the relationship between the plaintiff claims to be in danger or when generating unease , the plaintiff sought relief in the interests of the court referee . Functional benefits that would require action lawsuit Relief Relief range of things into action , things will not need relief exclude litigation relief. Determined whether the interest litigation , first under the premise of " actionable items " carried out . Generally considered actio benefit obligation due to the settlement of which have reached with complaints interests. Benefits arising vv confirmation is often due to the defendant's conduct makes substantive legal relationship between the plaintiff's substantive rights or dispute between the plaintiff and defendant , which the plaintiff is necessary to confirm the decision to remove the use of this controversial state. In direct action shareholders, the shareholders entitled shareholders by investing identity , based on some of its property in exchange for the corresponding options when their rights are violated and can not be solved through self-help , it is entitled to request public relief , the shareholders of this have an interest in the proceedings . Therefore , the legitimate interests of the other shareholders are shareholders, directors infringement and has sought public relief when necessary , the shareholder may own direct action brought on behalf of shareholders .

 

Standing Theory refers to specific litigation, litigants should have an interest in the subject of legal proceedings , you can sue an individual based on this , and enjoy the proceedings related rights , undertake corresponding obligations. Eligibility on the basis of the parties , that is to determine whether the parties eligibility basis. Traditional theory proper party is from the point of view of substantive law , the eligibility entirely attributed to the management of the foundation or on the disposition of the substantive law . Modern civil action theory is generally believed that the management or disposition of the complaint is the proper party payment basis . However, the parties consider its appeal lawsuit also formed the basis of eligibility and confirmation of existence unreasonable . Effectiveness of the formation of the appellate decision has dilated , except be binding on the parties , but the third party also has binding effect . Therefore , the formation of the complaint in the case law expressly only special provisions may only lift , and the legal form of appeal for the parties also made clear that under normal circumstances . Tong said that the party forming the complaint whether eligibility should first be determined according to the provisions of the law . If the law does not provide , then the people have the right to form or on the formation of the right people have the right to manage eligibility plaintiff . V. recognized by the parties want the court to confirm a legal fact or whether there is a legal relationship , and to determine the legal relationship between the parties , thus subject to the legal relationship uncertain benefits . Generally believed that people have a legal interest in the decision to confirm the eligibility is regardless of their party is entitled to the management or disposition .#p#分页标题#e#
 

V. Type shareholder lawsuit is nothing more than direct benefit of the provisions of the legislation of the company , confirmed the complaint and the complaint form . In this regard , this article will discuss in detail in the third chapter , they will not expand here . Simply put, the direct action of various types of company shareholders can get legislation exists to support the theory proper party . Equity lawsuit for damages as actio , the parties to the litigation object enjoy disposition ; company revoked the resolution of the complaint as a complaint form , the parties have formed their rights by the relevant laws and regulations ; company 's complaint resolution invalid recognized as a complaint , the parties are to confirm the judgment on the legal interests of the people there .