Research On Entrustment Agreement Of Voting Rights Of Listed Companies

Voting rights entrustment agreement is a common way for listed companies to arrange voting rights by agreement.According to the voting rights entrustment agreement,the client entrusts the agent to exercise the participation rights corresponding to the shares held by the client.Through empirical investigation on the voting rights entrusting agreement of listed companies,and summarizing the practical characteristics of voting rights entrusting agreement of Chinese listed companies,it can be found that the current carte Blanche,exclusive,irrevocable voting rights entrusting agreement based on the will of the trustee maximizes the flexibility of the existing legal norm system.Objectively,it breaks through the proportional relationship between the amount of economic benefits obtained by shareholders and the proportion of voting rights.The purpose of the trustee signing the voting rights entrustment agreement is not only to represent the principal to attend the shareholders’ meeting.Its practical application is separated from the legislative original purpose of facilitating shareholders to vote,but contains deep strategic intention and multiple purposes.Typing is helpful to reveal the core of voting rights entrusting agreements.Based on typing thinking,voting rights entrusting agreements of listed companies can be systematically classified into four types: management voting rights entrusting,control voting rights entrusting,guarantee voting rights entrusting and implicit voting rights entrusting.There are two different theories about the nature of the entrustment agreement on voting rights: the entrustment contract theory and the transfer of voting rights theory.The main reasons why the delegation contract cannot be established are as follows: first,the voting rights delegation agreement is in the name of the agent,in accordance with the will of the agent to independently exercise the voting rights,the principal can not unilaterally revoke and terminate the delegation and other features are inconsistent with the core essence of the delegation contract;Secondly,the subject involved in the voting right delegation agreement is the commercial subject,and the content of the agreement touches on the elements of commercial law.Therefore,understanding the voting right delegation agreement only from the perspective of civil law will inevitably encounter interpretation difficulties.Third,the principal-agent theory belongs to the traditional theory,and the voting rights entrustment agreement is an innovative model designed by commercial subjects through contracts that conforms to market rules and satisfies transaction demands.It is difficult for the traditional theory to achieve complete compatibility with the emerging practice.The main reasons why the theory of the transfer of voting rights cannot be established are as follows: first,the concept and category of the theory of the transfer of voting rights are lack of precise definition,and the connotation and extension of the theory are unclear.Second,the theory of voting right transfer cannot include all the practices of voting right entrusting agreement,which has contextual limitations and ignores the service and management functions of voting right entrusting agreement.Therefore,neither of these theories can bridge the gap.The voting rights entrustment agreement has the characteristic of independence,which is the superposition of the evolution of voting rights instrumentalism and comprehensive service in the form of contract.On the basis of closely conforming to the theoretical connotation,form and content of the voting rights entrusting agreement,defining the nature of the voting rights entrusting agreement as an independent contract is the key to standardize the voting rights entrusting behavior and promote the steady operation of listed companies.The voting rights delegation agreement of listed companies actually incorporates elements such as "external governance","control rights competition",and "non-proportional allocation of voting rights and equity",which will inevitably collide with the current market trading order.Rigid judgment of right and wrong can only meet the requirements of legal formalism,but in the solution of practical problems such as contract effectiveness evaluation,there is insufficient self-restraint.It is necessary to start from the legal relationship,trace to the source,take the thinking of commercial law as the guidance of the concept in the validity recognition,respect the autonomy of the will of the parties,give consideration to the transaction efficiency and security,and adopt the method of interest measurement.In view of the strengthening of the objectified tendency of voting rights and the expanding trend of value,the autonomous nature of legal acts needs to be respected,and the effect of the entrusting agreement of voting rights should be affirmed as a whole and divided and ruled.Tolerant of management and guarantee voting rights entrusting agreements,cautious to control voting rights entrusting agreements,strict treatment of implicit voting rights entrusting agreements.It provides practical rational guidance for properly dealing with conflicts of interest and disputes among businessmen,and also provides a clear and efficient reference idea for the judicial trial of similar cases in the future.