| The Chinese Company Law sets up the rules of pre-emption rights respectively in Limited Liability Company and Joint Stock Limited Company.For the Limited Liability Company,the clause of pre-emption rights for shareholders is a mandatory rule,which means shareholders may waive their pre-emption rights,but only through a resolution voted on by all shareholders;For the Joint Stock Limited Company,the clause of pre-emption rights is an enabling rule,and the company can create the pre-emption rights for shareholders by company’s articles or the resolution.The pre-emption rights of shareholder-oriented system protect the interests of minority shareholders in the process of shares issuing to a certain extent,but it hinders the company’s financing capacity.In order to promote the balance among the values of "fairness" and "efficiency",the Chinese Company Law should empower companies to exclude pre-emption rights in a more flexible way and give companies more space to realize corporate governing.As the Chinese Company Law currently attempts to adopt the authorized capital system for the company’s capital system,the construction of the pre-emption rights exclusion system should take the optimization of both legal and economical utility as the benchmark and achieve coordination of the shares issuing system as the goal.Specifically,the construction of the pre-emption rights exclusion system should follow the path: first,allow shareholders to authorize directors to issue new shares and exclude the pre-emption rights,and impose restrictions on directors’ power with substantive and procedural conditions;second,enable the "exclusion" by articles of association through a narrow proportion of resolution;third,set "exemptions" for capital increase for special purposes as few as possible,so as to avoid the trade structure of companies abusing exclusion rules and bypassing pre-emption rights,such as "vendor placing" and "cash-box structure";fourth,stipulate the legal consequences of illegally excluding the pre-emption rights and the remedies for shareholders,and strengthen the responsibilities of directors in the issuance of new shares. |
