浅析中国上市公司二元结构的内部监督机制的完善
Perfection of Dual Supervisory Mechanism of Listed Companies in China
刘璐
【摘要】This article starts with the overview of legislation on supervisory systems, including the supervisory board system and foreign imported independent director system. With a view to several main issues encountered in practice, this article provides a basic ground for perfection of Chinese dual supervisory mechanism in listed companies. At last, a remark will be made to conclude the writer’s viewpoint.
【关键词】supervisory board system, independent director system, liability, perfection, coordination
【全文】
An Overview of Dual Supervisory Mechanism in Chinese Listed Companies
Corporate internal supervision is a significant constituent part of corporate governance. Well-constructed supervisory mechanism is of vital importance to maintain healthy corporate governance. All over the world at present, board structures and procedures under different mechanisms vary in different countries. Some countries have two-tier boards that separate the supervisory function and the management function into different bodies. Such systems typically have a "supervisory board" composed of non-executive board members and a "management board" composed entirely of executives. Other countries have "unitary" boards, which bring together executive and non-executive board members. [FN1]Roughly speaking, double standard of internal supervisory structure has been set as to the two types of companies in China. Pursuant to the 2006 Company Law of PRC, “A limited liability company may set up a board of supervisors, which shall be composed of at least 3 persons. For a limited company in which there is a relatively small number of shareholders or which is relatively small in scale, it may have 1 or 2 supervisors and does not have to establish a board of supervisors.” [FN2] The other type of company－joint stock limited company, relevant provision is“ A joint stock limited company shall set up a board of supervisors, which shall be composed of at least 3 persons.” [FN3]Under the 2006 Company Law of PRC, we may see that Chinese internal supervisory mechanism is composed of three bodies: the shareholders assembly, the board of directors and the board of supervisors. The shareholders assembly is the supreme authority of a company, while the board of directors and the board of supervisors are parallel bodies under the shareholders assembly. The former body deals with daily managerial performance, and the latter is primarily responsible for supervising the board of directors’ performance and protecting minority shareholders’ interests. This arrangement of powers, which is similar to the distribution of powers in the western legal system, aims to internally achieve company’s sound checks and balances.
However, under this mechanism, the board of supervisors in Chinese listed companies does not work as well as expected. In fact, it works so disappointingly that it is given a name so-called “nominal body”, which implies that it has no substantial functions to the company in reality. It is worth mentioning that, state-owned shares accounts for a comparatively dominant portion of most listed companies’ shares in China. In most cases, the state or the legal entity is the biggest shareholder in the listed companies. They are in charge of appointment of the company’s management board. In this situation, the board of management is very likely only to stand for big shareholders’ interests. Minority shareholders within these companies may heavily suffer unsufficient protection of their due interests. In order to substantially improve the corporate governance structures and further promote the standardized operation of Chinese companies, China initiatively imported independent director system as reinforcement of existing monitoring mechanism. But at the beginning, the independent director system was simply supported by the China Securities Regulatory Commission (CSRC) with its administrative powers. It was reflected in a range of rules and regulations as follows:
