| In the field of company law,there are different corporate capital systems,but the common feature of both the authorized capital system and the declared capital system lies in the emphasis on the decision-making power of the board of directors on corporate capital issuance.The Company Law of 1993 stipulates the most stringent statutory capital system.The provisions on the cost of company establishment are shown as the paid in system,which is expensive and is not conducive to investment and entrepreneurship in the market.The Company Law of 2005 adopted the installment payment system of registered capital,which reduced the difficulty of establishing the company and reflected the connotation and characteristics of the subscription system to a certain extent.The 2013 Company Law,in response to the needs of the society,made relevant amendments and for the first time stipulated a subscription system in its full sense.Article 23 of the amendment changes the paid in system to the subscription system.Shareholders can flexibly pay the company’s capital in the form of subscription,and the concept of minimum registered capital disappears.This reduces the regulation of corporate capital,which is conducive to stimulating the vitality of venture capital to comply with the reform of the world capital system.Articles 97 and 164 of the 2021 Company Law(revised draft)introduced the authorized capital system for the first time for the selection of the company’s capital system,stipulating that the board of directors can obtain the right to issue new shares with the authorization of the articles of association or the shareholders’ meeting.The issuance of shares under the authorized capital system will make corporate financing more flexible and efficient.At the same time,it may also lead to changes in the company’s control,and the board of directors may use capital issuance to introduce external investment and then manipulate the shareholders’ meeting.Under the original legal capital system,the issue of shares is a company decision-making matter closely related to the company’s capital system.Under the current authorized capital system,the issuance of shares will not only involve the decision-making system of the company’s capital,but also the authority system of the company’s governance institutions,which is a major business decision-making matter of the company.The introduction of the authorized capital system will not cause too many conflicts for the interests of creditors,but for shareholders,it will not only affect the controlling interests and economic interests of shareholders,but also may lead to changes in the shareholding structure of shareholders in the company,or even dilution.In this case,if the board of directors properly issues the shares in strict accordance with the statutory issuance procedures and regulations,the issuance of the shares will be approved by the shareholders,and there will be no shareholder interest relief problem caused by the loss of shareholders’ interests.If the board of directors abuses the issuance authority,violates the provisions of the law or the articles of association,and conducts improper issuance,low price issuance and other matters,the interests of shareholders will be damaged,and shareholders need to seek relief.In addition,in the context of China’s strict securities supervision and management mechanism,the authorized capital system can play a limited role for joint-stock limited companies.However,from the perspective of system design and construction,this revised draft of the Company Law is very critical and necessary for the introduction of the authorized capital system and the construction of supporting systems.For example,whether the authorized capital system can play its due role in limited liability companies;Whether the shareholders’ preemptive rights are recognized in the process of issuing new shares,and whether the internal shareholders or the external third investors have more advantages in subscription;Whether it is legitimate for the board of directors to adopt targeted issuance when issuing new shares under the premise of authorization;In the case that the board of directors has conducted an improper issuance that infringes the shareholders’ rights and interests,how should the shareholders themselves remedy and what remedy way to choose;What is the relationship and difference between the action of stopping the issuance of new shares and the action of invalidation of the issuance of new shares?Under what circumstances are they applicable?How do shareholders choose;In the post event accountability,a series of issues need to be studied and responded to,such as what is the subject of responsibility,whether the board of directors or directors,and in what form they assume responsibility.The revised draft of the Company Law responds to the shortcomings and drawbacks of the existing legal capital system,greatly improves the company’s financing convenience,and is conducive to the company’s operation and development.However,the draft also has some problems,such as ignoring the interests of the original shareholders to be compensated,improper issuance of new shares in the process of issuance,and how to carry out relief.From the perspective of the rationality of the system construction,it is very necessary to study and compare the relief system for the improper issuance of new shares under the authorized capital system and the related supporting system construction.Under the authorized capital system,the board of directors can more flexibly use the main identity of share issuance to obtain an advantageous position under the situation of the competition for corporate control.However,the Board of Directors should also recognize that the benefits brought by the issuance of new shares ultimately belong to the company.If it only cares about the competition for status and power,it may have a certain impact on the subsequent issuance of the company and the company’s operation and management.Therefore,the reconstruction of the system construction of new share issuance under the authorized capital system and the relief measures for the improper issuance caused by the abuse of power by the board of directors can protect the interests of shareholders and the company to the greatest extent. |
