Study On Several Problems Of Voting Trust System

Voting trust is a special form of trust, which is the combination of trust and voting right. The essence of voting trust is a measure and a tool to gain the controlling power of corporation. Voting trust is adopted by many countries, because which has the function of safeguarding the small shareholder's interests, collecting the separated stock, guaranteeing the interests of creditor, avoiding the hostile takeover,and so on, which cannot be replaced by other systems. The voting trust system is rather mature in foreign country, especially in American. Although there is voting trust in practice in our country, for instance, Tsingtao Brewery Co. Ltd. had cooperated with Anheuser–Busch Company Inc. by voting trust in 2002, there is no voting trust system in the"Corporation Law"and"Trust Law". Therefore, our country should set up voting trust system in"Corporation Law"by learning other countries'experience and lesson on voting trust and combining with the situation of our country. Our country already has the legal foundation to introduce voting trust system. From the angle of the"Trust Law", our country had passed the"Trust Law"on April 28th, 2001, although there is no explicit rule about voting trust in the"Trust Law", there is no prohibition. From the angle of"Corporation Law", there is no Cumulative Voting,in order to safeguard the interests of small shareholders, our country had putted the"Cumulative Voting"in the new"Corporation Law"in 2005, therefore there is a possibility to put voting trust system in"Corporation Law". The author hopes that this paper can provide some help to the development of voting trust in our country.This paper is composed of three parts, including preface, text and epilogue. The text was divided into five chapters to elaborate voting trust system.Chapter one is theoretical generalization of voting trust. Starting from the definitions of voting trust of different countries, the author discusses the meanings and essence of voting trust. Then, author gives her own opinion on voting trust. Voting trust is a kind of trust, as a legal measure to gain the controlling power of corporation and maintain the interests of shareholder and corporation, in which a shareholder or several shareholders turned the nominal title of the share and voting right to the trustee, the trustee exert the voting right in the name of his own. The essence of voting trust is a measure and a tool to gain the controlling power of corporation. After analyzing the meanings of voting trust, this paper introduce the history of voting trust, civil law countries learn experience and transplant voting trust system from the countries that has voting trust system, and the present situation of voting trust in our country. At last, this chapter analyzes the characteristics and functions of voting trust. Voting trust is well accepted by so many countries. There have two reasons: first, because of the characteristics of voting trust, second, because of the functions of voting trust. Through the introduction of this chapter, this paper establishes the theoretical basis for the whole paper.Chapter two analyzes the compare of voting trust system and some related systems. Through the comparing and analyzing between voting trust and shares trust, voting trust and voting proxy, voting trust and shareholder's agreement, voting trust and cumulative voting, the author thinks that any system has its merits and demerits, any system cannot be replaced by other systems completely. As a principle of the country under the rule of law, law should provide more systems for parties to choose, which reflects the principle of autonomy of will on civil law. Voting trust system has the advantages that other systems cannot be compared with. Therefore, it is necessary for our"Corporation Law"to introduce voting trust system. At the same time, the publication of"Trust Law"makes our country has the legal foundation to introduce the voting trust system. Since the"Trust Law"brings into effect, there are lots of trust companies emerging in our country, they become very professional, which provide the reality safeguard for introducing voting trust system.Chapter three will Point out the mainly format and substance requirements of voting trust. This chapter from the angle of building our voting trust system introduces the formality requirements and material requirements of voting trust. Voting trust should have written contract, because of its complexity and elaboration. Written contract can avoid dispute and ambiguous meanings. Register and publicity is a process that law confirms the legal force of voting trust, which can protect the security and order of stock trading. In terms of purpose of trust, it is hard to have an objective criterion. The author sums up some situations of legal purpose and illegal purpose according to foreign countries'advanced experience and practical experience. As for the term of voting trust, author agrees with ten years term which holds by most countries.Chapter four elaborates subject, object and content from the angle of our national conditions. The subject of voting trust includes client, trustee and the holder of voting trust certificates. There are two views about the object of voting trust, one for share, another for voting right. Through the analyzing of these two views, author holds the view of voting right as object of voting trust. This chapter also analyzes the rights and obligations of client, trustee and the holder of voting trust certificates.Chapter five analyzes the reason and legal consequence of voting trust invalidation, revocation and termination. There are little rules about invalidation, revocation and termination for voting trust on the law, so author raises some views on that according to the practice of other countries and trust law.