21st Century Business Herald reporter Wang Feng reported from Beijing that the draft revision of the Company Law, which has been under review for two years, is entering the sprint stage.
Recently, the seventh meeting of the Standing Committee of the 14th National People's Congress deliberated on the fourth draft of the revised company law, and some reviewers said that the provisions of Article 47 of the fourth draft on the registered capital subscription system "are the most controversial place in the revision of the company law".
Positive and negative views emerged during the deliberations of the sub-groups. Some believe that the increase in the five-year subscription period should be affirmed, while others are worried that such a revision will affect the vitality of the market economy.
The Company Law is the basic law of the market economy, and the company is a community of interests, and the revised draft has previously added the expression of protecting the legitimate rights and interests of employees in addition to the company, shareholders and creditors.
In particular, some real estate companies are in a crisis of capital chain, and in the case of "guaranteed delivery" in many places, it is more urgent to protect the rights and interests of customers.
Stabilize and improve social expectations
In 2013, in order to cooperate with the reform of the company registration system, the Company Law was amended to no longer restrict the amount of initial payment of shareholders' capital contributions and the period of installment payment, which greatly encouraged the public's enthusiasm for investment.
But there are some drawbacks to being too lenient. There are many companies in society that have "injected water into the registered capital", and the amount of subscribed capital promised by shareholders is huge, and the payment period is 50 years or even longer, and some even far exceed the normal life span of natural persons or the average life expectancy of legal persons.
Article 47 of the third draft of the draft, which was reviewed in August this year, added a provision: "The amount of capital contribution subscribed by all shareholders shall be paid in full by the shareholders within five years from the date of establishment of the company in accordance with the provisions of the articles of association." ”
The fourth draft of the draft reviewed this time continues to improve the relevant provisions, including setting a subscription period of less than five years for key industries and sectors, leaving institutional space, and the promoters of a company limited by shares should subscribe in full before the establishment of the company.
Recently, when the group deliberated on the fourth draft of the draft, the positive and negative views were still very concentrated.
Sun Xianzhong, member of the Standing Committee of the National People's Congress, said during the group discussion that a practical investigation found that some companies have ostensibly admitted to subscribe, but the subscription period is too long, and some even have a subscription period of 50 or 100 years, so that the registered capital is often not in place, and the so-called "white wolf with empty gloves" has emerged. Therefore, it should be affirmed that the company law amendment has established a five-year subscription period system.
However, in terms of the operation plan, Sun Xianzhong said that the idea of "old methods for the old and new methods for new people" can only play a role in the future entrepreneurial enterprises, and there is no targeted solution to practical problems.
Ma Chunshan, a deputy to the National People's Congress, said: In practice, there have indeed been situations in which the period for shareholders to subscribe is too long, which affects the security of transactions and harms the interests of creditors. On the basis of the subscription system, the capital contribution guarantee system should be further improved.
Ma Chunshan believes that the newly added system of shareholders losing rights, the system of accelerated expiration of shareholders' capital contribution obligations, and the liability system for equity transfer capital contribution before the subscription period has expired are sufficient to solve the disadvantages of excessive shareholder subscription period. Therefore, the issue of setting a time limit for the payment of capital contributions should be treated with caution.
However, a number of legal experts have pointed out that the system of limiting the subscription period and accelerating the maturity of shareholders' capital contribution obligations has irreplaceable institutional value.
Liu Junhai, a professor at the Law School of Chinese People's University, told 21st Century Business Herald that respecting and protecting the term interests of shareholders who subscribe to capital contributions is a general principle, and forcing shareholders to accelerate the maturity of capital contributions is only an exception rule, and is conditional on the company's inability to pay off its debts as they mature.
"The premise for shareholders to enjoy the benefits of the capital contribution period is to promise to all stakeholders of the company to pay in full and in a timely manner when the capital contribution period expires, and to ensure that the company always has the ability to repay debts before the actual capital contribution. Once the company becomes insolvent, the term benefit is immediately terminated early, and the capital contribution obligation is accelerated. Liu Junhai said.
Cao Hongming, a member of the Standing Committee of the National People's Congress, believes that the design of the system that requires shareholders to pay up their capital contributions within five years needs to consider the corresponding operating costs of the system. Once the system is adopted, companies with existing shareholders that have not paid up their contributions in full within five years may be considered to be potentially at risk of harming the interests of creditors. In consideration of the operating costs of such a system, it is necessary to set a special adaptation period to avoid retroactive effects on existing companies.
Cao Hongming believes that these are necessary links that require huge institutional costs. However, at present, the mainland has not yet perfected the regulations on this, which may have an adverse impact on the subsequent implementation.
Xiao Jie, vice chairman of the Standing Committee of the National People's Congress, suggested during the group deliberation that in the process of deliberating, passing, and implementing laws, it is necessary to do a good job of publicizing and interpreting laws in a targeted and timely manner, so as to promote the effective implementation of laws and stabilize and improve social expectations.
To protect the legitimate rights and interests of customers
The company is a community of interests.
Article 1 of the current Company Law clearly stipulates that this Law is enacted in order to regulate the organization and behavior of the company, protect the legitimate rights and interests of the company, shareholders and creditors, maintain social and economic order, and promote the development of the socialist market economy.
The fourth review draft adds "employees" to relevant stakeholders to further strengthen the democratic management of employees and protect the legitimate rights and interests of employees.
During the breakout sessions, several reviewers argued that stakeholders should also include "customers".
Guo Shuqing, a member of the Standing Committee of the National People's Congress, suggested that "customers" should be included in Article 1 of the draft to highlight the customer-centric business philosophy of commercial organizations.
Guo Shuqing said that customers are the company's most extensive stakeholder group, and without customers, the company cannot survive and develop. Therefore, the company shall unconditionally honor all its commitments to customers. Clients are also often the most important, prioritized, and most protected creditors of the company. The customer is also an irreplaceable binding force for the company's legal operation.
Guo Shuqing said, for example, the real estate industry guarantees the delivery of buildings, and gives priority to the buyer's right to claim for the delivery of the house over the right to be repaid for the construction project price, and there are many construction material suppliers' payments, mortgage rights, and other creditor's rights. It has become a social consensus that buyers are preferred, but it has not yet been written into law, and it is recommended to reflect it in the company law.
Ouyang Changqiong, a member of the Standing Committee of the National People's Congress, pointed out that guaranteeing the delivery of buildings is the protection of the legitimate rights and interests of real estate companies' customers. However, the customer who bought the house was not necessarily an employee of the company, nor a shareholder of the company, nor a creditor, but he was indeed a customer of the real estate company.
The term "customer" is rarely used in law and is a broad concept. Ouyang Changqiong pointed out that the concept of "customer" is very clear in the relevant special law, such as securities investors, futures traders, consumers, etc. Protecting the legitimate rights and interests of customers is a trend and an international practice.
Liu Junhai believes that the same frequency resonance between the company law and the consumer rights protection law should be realized, the gene of consumer rights protection should be implanted into the company law and corporate governance, and the external confrontational rights protection model between consumers and companies should be upgraded to the internal cooperative governance model of the company.
Governance of "high debt and high dividends"
It is suggested that the content of regulating the remuneration of corporate executives should be included in the revision of the Company Law, which is also a hot topic during the group discussion.
An Lijia, a member of the Standing Committee of the National People's Congress, said that due to the impact of the macro economy and the epidemic, some listed companies in the mainland have suffered losses and their stock prices have fallen, but it is not uncommon for executives of loss-making companies to receive high salaries, and most of them occur in private listed companies.
Some media combed through the 2022 annual reports of 20 listed car companies and found that nearly half of the car companies (9) will lose money in 2022, of which the largest net loss will reach 14.6 billion yuan. However, in stark contrast, the executives of some loss-making companies still receive "sky-high" salaries, and the annual salary of a new car-making company is 56.361 million yuan CEO2022.
An Lijia said that in the case of the company's operating losses and shareholder losses, the leaders and executives of listed companies can still receive high salaries, which is directly related to the imperfection of corporate governance. Since most of the listed companies in mainland China are controlled by the actual controller, the board of directors and shareholders' general meeting of a considerable number of companies fail to make decisions on behalf of all shareholders, and their resolutions often reflect the intentions of the actual controller.
Therefore, An Lijia suggested that by improving the relevant provisions of the Company Law, the content of regulating the remuneration of corporate executives should be included in the revision of the Company Law, so as to control the phenomenon of "high debt and high dividends".
Hou Yongzhi, a member of the Financial and Economic Committee of the National People's Congress, also suggested adding an article to the general provisions: the company should establish a reasonable income distribution and remuneration system.
"The excessive remuneration of some companies has attracted widespread attention from the society, and the excessive remuneration of senior executives is not only contrary to the principle of social fairness, but also is not conducive to the sustainable and healthy development of the company. Hou Yongzhi said.
Liu Junhai believes that enterprises need to have a sound salary system. This system should be to match incentives and constraints, link salary with performance, combine salary with employees' contribution to the enterprise, and link salary level with the company's competitiveness.
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