The Shifa of the state-owned stocks to the mishap and correction suggestions

Wei Junxian Zhou Lin law firm June 19, 2009, the Ministry of Finance, SASAC, the Securities and Futures Commission, the Social Security Fund will be issued the "domestic securities market transfer some state-owned shares to enrich the National Social Security Fund Implementation Measures" (financial Enterprises [2009]94) (hereinafter referred to as "state-owned Stock transfer method") provisions " According to the central government's decision spirit of raising the Social Security Fund through multi-channel, this method is formulated according to the relevant policies of the State Council on the implementation of state-owned shares in domestic securities markets. The starting point of raising social security funds through multi-channel is commendable. However, the specific provisions of the scheme are in conflict with a number of existing legal provisions.　　The mishap in these legislative techniques has become a major obstacle to the legitimacy of its legislation.　　The relevant provisions of the "state-owned stock transfer method" has the following provisions: The second part of the measures referred to as state-owned shareholders are identified by the state-owned Assets supervision and administration of state-owned shareholders.　　Fourth the state-owned shares mentioned in these measures refer to the shares of listed companies held by state-owned shareholders.　　Fifth the state-owned shares referred to in these measures refer to the initial public offering of shares and the listing of the shares, by 10% of the actual amount issued, the transfer of some state-owned shares of listed companies to the National Social Security Fund Council (hereinafter referred to as Social Security Foundation) is held. Nineth the state-owned shareholder of the mixed ownership, the state-owned investor of the state-owned shareholder is multiplied by the share of the state-owned shareholder to the amount of the interest to be transferred.　　The specific methods include: After obtaining the unanimous opinion of the investors or shareholders of the state-owned shareholders, direct transfer to the state-owned shares, and by the state-owned shareholder's state-owned investors to the Non-state-owned investors in the corresponding compensation, or by the state-owned shareholders of the national investors to pay dividends or own funds to the central Treasury once or twice. The most basic provisions of the "state-owned stock transfer method" are "state-owned shareholder" confirmed by state-owned Assets Supervision and administration organization to hold part of the state-owned shares in accordance with the actual number of shares issued by the listed companies in the initial 10%. According to the general understanding, the state-owned shares belong to all the property of the whole nation, the transfer to the National Social Security Fund will be used to enrich the National Social Security Fund, it is reasonable and legitimate, but the "state-owned stock transfer method" of the relevant provisions have taken into account the legitimate interests of stakeholders Is it consistent with existing legal provisions? Is it possible to achieve a legitimate purpose? In fact, its legislative considerations and technical flaws make its legitimacy to some extent the legislator's "take for granted".　　And let us from the "state-owned stock transfer measures" involved in the "state-owned shareholders" of the provisions set out to consider. Mishap 1, on the definition of state-owned shareholder "The method of the state-owned shares" does not specify what is the state-owned shareholder, but it points to the confirmation of the state-owned Assets Supervision and administration organization. According to the interim provisions on the management of state-owned shareholders of listed companies issued jointly by the Ministry of Finance and the SFC in 2007, "state-owned shareholders of listed companies are state-owned and state-controlled enterprises, relevant institutions, departments and institutions which hold shares in listed companies." According to the above policy documents, the market generally considers the state-owned shareholders to include: A: The traditional state-owned enterprises without restructuring--the enterprises owned by the public the relevant (state-owned) organs, departments and institutions; B: Wholly state-owned companies established under the company law; C: All shareholders of a company or a company incorporated under the company law are all of a or B; D: According to the company law　　A limited company or a joint stock company established in which more than half of its contributions are provided by a, B or C, and the first major shareholder is a, B or C. 2, "state-owned shares of the means of transfer" provisions of the third article of China's company law, "the company is a legal entity, there is an independent legal person property, the right to property rights." The company is liable for the debts of the company with all its property. "China's company law and the related legal provisions, has clearly been a legal independent personality of companies to enjoy the legal person's property rights, and the basis for the company to assume responsibility is that it enjoys independent property rights."　　Such subjects as the B, C and D mentioned above, as long as they are established according to the company law, shall enjoy an independent legal person's property right in accordance with the general provisions of the company law. The "transfer" stipulated in the method of the state-owned stock transfer should be interpreted as the upper state shareholder of the state-owned shareholder of the listed company (for example, the Government itself) through the shell of the listed company to directly control the legal person property right of the state-owned shareholder. As the "state-owned shareholder" in the middle layer is directly penetrated, the legal person's property right under the company law is completely neglected. The dominant behavior of the upper-state shareholder is essentially that the upper-state shareholder withdraws its contribution to the state-owned shareholder of the listed company. In addition to destroying the legal consequences of the strict implementation of the company law (no matter what), the consequences of its economic significance constitute infringement of the interests of the state-owned shareholder of the listed company and other shareholders.　　Specifically, for Class B and C shareholders, it infringes on the interests of their creditors and against their creditors and the interests of non-state shareholders for Class D shareholders. From the wording of "state-owned stock transfer", the infringement of the creditor's rights of the state-owned shareholder of the listed company the drafters of the state-owned shares have not been taken into account, and the infringement of the interests of Non-state-owned shareholders has been taken into consideration, as stipulated in article Nineth of the "state-owned stock transfer method" as listed above, "mixed ownership" state-owned shareholder should obtain "The unanimous opinion of the investors or shareholders of the state-owned shareholders".　　However, this provision in practice to achieve the effect is not easy, the most likely result is that the shareholders of the mixed ownership of shareholders in a long time to make the underlying companies can not be listed. Amendments to the proposal from the maintenance of the seriousness of the law and the implementation of the "state-owned stock transfer measures" to reduce the resistance of the target, we have the "state-owned stock transfer method" has the following amendments to the proposal.　　These recommendations are sorted by the principle of diminishing impact, that is, if the preceding recommendations are not accepted for some reason, then continue to consider the recommendations that are imminent, and so on. 1, will be established in accordance with the company law of the state-owned shareholders excluded from the transfer of the main body. In this way, we can respect the whole seriousness of the company law and realize theComprehensive protection of the independent legal status of persons and companies. 2, the B class, C category of state-owned shareholders in the transfer of the main body, and the D-Class (mixed ownership) shareholders exclude the subject of the transfer.　　This approach ignores the interests of creditors but can achieve respect for the interests of non-state contributors. 3. The new mixed-ownership shareholder shall be included in the subject of the transfer of the state-owned shareholder in category B and C, at the same time, such new mixed ownership shareholders may be required to make clear in their statutes that the non-State shareholders have unconditional consent in the event of a transfer; The mixed-ownership shareholders established prior to the amendment shall be excluded from the subject of the transfer. This way, ignoring the interests of creditors, ignoring the face of the transfer policy, the interests of non-state-owned shareholders who have taken into account the risk of transferring their shares in partnership with state-owned shareholders, but respecting the interests of the private subjects that have been engaged in joint ventures with state-owned shareholders prior to the introduction of the policy, this proposal also takes into account the principle of "retroactive law"