On Legal Issues Of Corporate Control Under Authorized Capital System

The issue of corporate control contains a wide range of institutional connotations,it is the production process of corporate decisions and the embodiment of external utility,in the past 100 years,it is a central issue in the field of corporate behavior or organization.As the core of corporate power,corporate control will change with the change of capital system.In China,the authorized capital system will be introduced soon,which will enable the board of directors to issue shares according to its own judgment within the scope of its authorization,and the company has gradually changed from shareholdercentrism to board-centrism.In the authorized capital system,the board of directors holds the right to issue the capital in the scope of the authorized capital,and in fact,whether it is the public issue of new shares,the directional issue of additional shares or the issue of class shares,will affect the control of the company.In the countries where the authorized capital system has been applied,there is already a risk that the board of directors will use the right of capital issuance to impact the control of the company.For example,the board of directors issued new shares to dilute the control rights of the original shareholders,the board of directors issued additional shares to harm the control rights of the shareholders,the board of directors issued voting shares leading to the fight for control rights of the company,etc.,this almost always does more harm than good from the point of view of protecting the interests of the company.The existence of these risks is actually a precaution for our country to introduce the authorized capital system.In the final analysis,these problems actually stem from three aspects: first,the board of directors abuse of the right to issue capital;second,the board of directors is how to abuse the right to issue capital is difficult to judge;third,shareholders can not defend control.From the content of the second draft of the company law of our country,the three aspects of the legal provisions are also slightly inadequate: first,the board of directors abuse of the right to issue capital of the legal regulation is insufficient;Second,the board of directors issued shares of the legitimacy of the standard judgment is vague;third,the board of directors issued improper damage to shareholder control of the lack of defense and relief path.This means that after the introduction of authorized capital system,our“Company law” will be difficult to resist the board of directors abuse of capital distribution caused by the imbalance of corporate control.In order to take into account the interests of the company and the vitality of the market,how to prevent the issue of corporate control under the authorized capital system from the legal level is particularly important.To solve the problem of the board of directors abusing the right of capital issue under the authorized capital system,we should perfect the relevant laws and regulations,deepen the directors’ fiduciary duty,and regulate from the source of the power abuse.The optimization of the control mechanism of over-authorization restricts the board of directors’ issuing behavior within a reasonable range.It is difficult to judge the issue legitimacy of the board of directors,so we should flexibly apply the revised commercial judgment rules.As to the problem that the shareholders are unable to defend the control rights,we should construct the defense and relief path of the shareholders’ control rights under the authorized capital system,that is,in the course of the board of Directors’ improper issuance,after the capital issue resolution of the board of directors has come into effect,we should perfect the lawsuit of the corporate decision defects under the authorized capital system to remedy the control right.The Ex ante regulation and ex post regulation are combined to protect the interests of the company in advance.