Phoenix Satellite TV 65438+1October 28th According to the 18th meeting of the 10th the National People's Congress Standing Committee (NPCSC), Xinhua News Agency1October 27th, the revised company law was passed. Compared with the current company law, this new law, which will be implemented on June 65438+1 October12006, has eight major changes that have attracted the attention of the industry.
The threshold for establishing limited liability companies and joint stock limited companies has been lowered.
According to the current Company Law, the minimum registered capital of a limited liability company is 500,000 yuan for companies mainly engaged in production and operation and commodity wholesale, 300,000 yuan for companies mainly engaged in commercial retail, and 654.38+10,000 yuan for companies engaged in scientific and technological development, consulting and services, which require one-time payment.
In the process of revision, it is generally believed that this provision is too high, which is not conducive to private capital entering the market. Requiring the registered capital to be paid in full at one time is also easy to cause idle funds. Accordingly, the law was amended accordingly. First, the requirement of distinguishing the minimum registered capital according to the company's business content was cancelled; The second is to allow the company to pay off its capital contribution in stages within two years according to the prescribed proportion, in which the investment company can pay off it in five years; The third is to reduce the minimum registered capital of a limited liability company to RMB 30,000.
The current Company Law stipulates that the minimum registered capital of a joint stock limited company is 6,543,800 yuan, but the revised draft submitted to the the National People's Congress Standing Committee (NPCSC) meeting for deliberation for the first time in February this year has not changed this point. During the deliberation, some the National People's Congress Standing Committee (NPCSC) members and local governments, departments and enterprises suggested that the minimum registered capital of a joint stock limited company should be appropriately reduced to encourage investment and entrepreneurship. On this basis, the law reduces the minimum registered capital of a joint stock limited company to 5 million yuan.
Perfecting the director system and avoiding "one word"
In the process of legal revision, all parties generally reflect that the current company law is too prominent for the chairman's authority and the rules of procedure of the board of directors are not perfect. Accordingly, the revised company law highlights the collective decision-making role of the board of directors, strengthens the restriction on the chairman, and refines the board meeting system and working procedures.
According to the law, the board meeting shall be convened and presided over by the chairman; If the chairman is unable to perform his duties or fails to perform his duties, it shall be convened and presided over by the vice chairman; If the vice chairman is unable to perform his duties or fails to perform his duties, it shall be convened and presided over by more than half of the directors.
At the same time, the law stipulates that the board of directors shall make minutes of decisions on matters discussed, and the directors present at the meeting shall sign the minutes. The board of directors decided to implement the one-person-one-vote system.
Shareholders have the right to decide whether the company will stay or not.
At present, some companies have serious operational difficulties and their financial situation has deteriorated. Although it has not reached the bankruptcy limit, it will cause greater losses to shareholders' interests if it continues. However, due to the serious differences between shareholders, the shareholders' meeting and the board of directors can't make a resolution on the dissolution and liquidation of the company, and they are often in a stalemate.
According to this situation, the revised company law stipulates that the company has serious difficulties in operation and management, and its continued existence will cause great losses to the interests of shareholders. If it cannot be solved by other means, shareholders who hold more than 10% of all shareholders' voting rights of the company may request the people's court to dissolve the company.
It is the basis and premise for shareholders to know the actual situation of the company's related affairs to protect their interests. Accordingly, the revised Company Law stipulates that shareholders may request to consult the company's accounting books. Where a shareholder requests to consult the company's accounting books, he shall submit a written request to the company, explaining the purpose. If the company has reasonable reasons to believe that the shareholders' access to the accounting books has improper purposes, which may harm the legitimate interests of the company, it may refuse to provide access, and shall give a written reply to the shareholders within 15 days from the date of the shareholders' written request, explaining the reasons. If the company refuses to provide inspection, the shareholders may request the people's court to require the company to provide inspection.
At the same time, the law stipulates that shareholders receive dividends according to the proportion of paid-in capital contribution; When the company increases its capital, shareholders have the priority to subscribe for the capital contribution in proportion to the paid-in capital contribution. Except that all shareholders agree not to pay dividends according to the proportion of capital contribution or not to subscribe for capital contribution in priority.
"One-man company" written into law
During the deliberation of the revised draft of the company law, although there are different opinions on the provisions of "one-person company", the revised company law still includes the relevant provisions that natural persons can set up a one-person limited liability company.
According to the law, the minimum registered capital of a one-person limited liability company is RMB 654.38+10,000. Shareholders shall pay in full the capital contribution stipulated in the Articles of Association. A natural person can only invest in the establishment of a one-person limited liability company. A one-person limited liability company cannot invest in the establishment of a new one-person limited liability company.
The revised draft once stipulated that if the registered capital is more than 5 million yuan or there are more than 200 employees, a board of supervisors shall be established, and its members shall not be less than 3. During the deliberation, some localities, departments, enterprises and experts suggested that a limited liability company with a small number of shareholders or a small scale may have only one or two supervisors instead of a board of supervisors.
Accordingly, the revised Company Law stipulates that a limited liability company shall set up a board of supervisors with no less than three members. A limited liability company with fewer shareholders or smaller scale may have one or two supervisors instead of a board of supervisors.
Set up a special department to improve the governance structure of listed companies
In order to further improve the requirements for listed companies and improve their governance structure. In the chapter of "Establishment and Organization of a Joint Stock Limited Company", the Law establishes a special section of "Special Provisions on the Organization of Listed Companies", which provides for independent directors, secretary of the board of directors and related transactions.
According to the law, if the directors of a listed company are related to the enterprise involved in the resolution of the board of directors, they shall not exercise their voting rights on the resolution or on behalf of other directors. The board meeting can only be held when more than half of the unrelated directors are present, and the resolutions made at the board meeting must be passed by more than half of the unrelated directors. If there are less than three unrelated directors present at the board of directors, they shall be submitted to the shareholders' meeting of the listed company for deliberation.
At the same time, the law stipulates that if a listed company purchases or sells major assets within one year or the amount of guarantee exceeds 30% of the company's total assets, it shall make a resolution at the shareholders' meeting, which shall be passed by more than two-thirds of the voting rights held by the shareholders present at the meeting.
Provide institutional support for the in-depth reform of wholly state-owned companies
Many people have expressed different views on whether the provisions of wholly state-owned companies should be retained in the revised Company Law. However, in the chapter "Establishment and Organization of Limited Liability Companies", the revised Company Law has a special section "Special Provisions for Wholly State-owned Companies" to provide institutional support for its in-depth reform.
According to the law, a wholly state-owned company does not have a shareholders' meeting, and the state-owned assets supervision and administration institution exercises its functions and powers. The state-owned assets supervision and administration institution may authorize the board of directors of the company to exercise part of the functions and powers of the shareholders' meeting and decide on major issues of the company, but the merger, division, dissolution, increase or decrease of registered capital and issuance of corporate bonds of the company must be decided by the state-owned assets supervision and administration institution; Among them, the application for merger, division, dissolution and bankruptcy of an important wholly state-owned company shall be examined by the state-owned assets supervision and administration institution and reported to the people's government at the same level for approval.
At the same time, the law stipulates that the chairman, vice-chairman, directors and senior managers of a wholly state-owned company shall not hold part-time jobs in other limited liability companies, joint stock limited companies or other economic organizations without the consent of the state-owned assets supervision and administration institution.
A limited liability company may be sued for deliberately "not paying dividends"
In real life, some major shareholders of limited liability companies take advantage of the control right of the company, do not distribute profits to shareholders for a long time, and do not let small and medium shareholders check the company's financial situation. Small and medium-sized shareholders whose rights and interests are damaged cannot quit the company by transferring shares like shareholders of a joint stock limited company, resulting in serious damage to their interests.
In view of this situation, the revised Company Law stipulates that if the company has not distributed profits to shareholders for five consecutive years, and the company has made profits for five consecutive years and meets the conditions for distributing profits stipulated in this Law, the shareholders who voted against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price. If the shareholders and the company fail to reach an equity purchase agreement within 60 days from the date of adoption of the resolution of the general meeting of shareholders, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the general meeting of shareholders.
The intermediary will be liable for fraud compensation.
Due to various reasons, intermediaries sometimes issue false capital verification certificates, evaluation reports and other materials, which make the company's creditors misunderstand the real situation of the company's capital and cause losses to creditors. The law stipulates this, and the intermediary agency should bear the corresponding liability for compensation.
According to the law, if an institution undertaking asset appraisal, capital verification or verification provides false materials, the company registration authority shall confiscate the illegal income and impose a fine of more than one time but less than five times the illegal income. The relevant competent department may order the institution to suspend business, revoke the qualification certificate of the person directly responsible and revoke the business license according to law.
At the same time, the law stipulates that if an institution undertaking asset appraisal, capital verification or verification causes losses to the company's creditors because the appraisal result, capital verification or verification certificate issued by it is untrue, it shall be liable for compensation within the scope of its appraisal or verification, except that it can prove that it is not at fault.