| Corporate form structure plays an important role in corporate legislation.The basic classification of corporate form will directly affect the framework and function of corporate law.The reform of company law at home and abroad is always accompanied by the reform of company form.From the perspective of the characteristics of company form overall development,the company form in adjusting the original form and innovation of the new form,the classification of the company in the form of a form,substance and mixed standard,each company form,which is mainly composed of shareholders representing the interests of the diverse portfolio,and investigate the root cause,the cause of the development and change of company form is to continuously satisfy shareholders in practice to the operation requirements of the investment of the company’s property.The essential reason for the differences in company forms lies in the differences in the way of property operation represented behind the company forms,which is the essential attribute difference of company forms.Through the system value of limited liability companies and joint stock limited companies since the day of their birth and the concrete practice of various countries,joint stock limited companies were initially positioned as open large-scale companies,and shareholders indirectly controlled the company’s property operation.Limited liability company is a kind of company which is designed to expand the application of limited liability.Shareholders directly control the operation of property.Firstly,in terms of the formation of company property,the equity of investors in limited liability companies is represented by their investment shares.The equity of a shareholder of a joint stock limited company is expressed in shares.Second,the essential attributes of the two types of companies are different--in terms of the operation mode of corporate property,first of all,the two companies have different management concepts.Shareholders of limited liability companies have a strong desire to control the property they invest,while shareholders of limited liability companies do not have a strong desire to directly control the property of the company.Secondly,the way of organization and management is different.A limited company is generally managed by the shareholders,while a joint stock company is managed by the board of directors.Thirdly,the equity liquidity is different.The equity of a limited company is not freely transferred,while the equity of a joint stock company can be freely transferred.In addition,the liquidation system is different.In terms of the choice of the liquidation obligor,the limited company should respect the previous management mode during the normal operation period of the company,while the joint-stock company is mostly held by the directors.At the same time,information disclosure is different from the accounting system.In view of the fact that the shareholders of a limited company have first-hand information and no disclosure obligation is involved,accounting requirements can be simplified.However,joint-stock companies need to fulfill the mandatory information disclosure obligation,and the operation mode of joint-stock companies in the world gradually draws close to the Anglo-American accounting mode,emphasizing high transparency and protecting investors.Finally,the nature of legal norms is different,limited companies to configure more arbitrary norms,joint-stock companies to configure more mandatory norms.There exists the problem that corporate form deviates from its corresponding attributes in the legislation of corporate form in China,which results in the weakening of the differences and the low degree of differentiation between the two.In the face of the provisions of China’s current company law,it is difficult to clearly distinguish the two types of companies,no matter trying to take the size and number of people as the standard,or trying to apply the jurisprudence to take the person and capital as the standard,that is,the essential attributes of the two types of companies have not been properly arranged in legislation.That is to say,it is difficult to distinguish the two types of company forms.The main problem lies in the fact that China’s company legislation fails to highlight the essential attribute difference between the two types,namely the difference in the operation mode of company property,which is the distinction standard in the essence of company forms.To be specific,first,there is a lack of distinction between the two concepts of operation and control and the mode of management and operation.Limited companies do not demonstrate the concept of direct shareholder control over the operation of the company.The only big difference lies in the special regulations on the listing of joint-stock companies.Second,in the aspect of equity transfer,the liquidity of the equity of joint stock companies is often controversial due to the existence of closed joint stock companies in legal interpretation and practice.The unique preemptive right system of limited companies is also not conducive to protecting the personal integrity of individual shareholders in the case of insufficient financial strength.Third,in the liquidation system,the stipulation that the liquidation group of the limited company is composed of shareholders is not accurate,and both of them ignore the autonomous status of the articles of association.Fourthly,in the aspect of information disclosure and financial accounting report,it fails to make a proper distinction between them,and joint-stock companies are insufficient in protecting the rights and interests of investors and shareholders.Fifth,in terms of the allocation of legal norms,the discretionary norms of limited companies are insufficient,while the mandatory norms of joint-stock companies are insufficient.Rules of our two companies form should return to their own nature,have the following Suggestions: first,based on the essential attribute of two kinds of form structural adjustment: cancel co.,LTD.,50 caps,will be closed joint-stock company incorporated into co.,LTD.,integrative sealing ability resources,clear property boundaries of the two companies about closed;At the same time,the joint stock company is subdivided into listed company and unlisted public company.The method for raising and establishing stock companies without practical significance shall be abolished.Then,based on the essential attributes,the specific design of the differentiation of the two types of company property operation modes is carried out.First,in terms of operation control concept and management operation mode,the limited company should more reflect the characteristics of flexible autonomy,and the organizational structure need not be complete with "three meetings".The management mode can be learned from LLC in the United States.A poll may be taken on the voting.However,joint stock companies need complete "three meetings" and strengthen the supervisory role of independent directors and board of supervisors.Secondly,in terms of equity liquidity,the property of equity circulation of a joint-stock company should be clarified in legal interpretation.The system of preemptive right of limited company is liable to infringe on the requirements of minority shareholders on human rights.Thirdly,in terms of the company’s liquidation system,the concept of the liquidation obligor shall be clearly defined.In terms of the selection of the liquidation obligor,the limited company shall be held by the person carrying out the business according to the previous management mode,or determined by the articles of association or the shareholders’ meeting.In order to prevent the dissolution and liquidation due to the deadlock of the company,a joint stock company shall add a new clause in addition to the original clause "the person determined by the directors or the general meeting of shareholders".Fourth,in terms of information disclosure and the improvement of accounting methods,joint-stock companies should focus on learning from the British and American accounting model to protect investors and pursue "true and fair" as far as possible.Fifth,the allocation of legal norms,should increase the company’s arbitrary standard allocation;The mandatory allocation of joint stock companies should be differentiated according to the type of segmentation.In addition,in the mode of legislative norms,the combination of the general norms of corporate law and the form of individual norms. |
