【摘要】本文以我国资本市场上中小股东首次在董事会选举中击败控股股东并成功控制董事会的上市公司“深康佳”为例, 探讨中小股东参与公司治理的动因、途径及局限性。主要发现和结论是:首先, 互联网时代下, 随着法制环境的改善和信息渠道的日益畅通, 中小股东的维权意识更强, 更容易了解和辨识控股股东对上市公司利益的侵害行为, 也更可能借助网络等新媒体渠道沟通协作并联合制衡大股东;其次, 股东网络投票制度降低了中小股东投票的成本, 而累积投票制则大大提高了中小股东选派董事代表的可能性, 成为中小股东制约控股股东、参与公司治理的有效渠道;最后, 由于中小股东利益联盟脆弱、治理角色定位不当、短期偏好等局限, 中小股东掌握控制权可能造成公司在治理和经营管理等方面的混乱。因此, 我们需要客观全面地评价中小股东参与公司治理的积极意义及其局限性。本文提供了一个中小股东参与治理的完整分析框架, 丰富了现有中小股东治理的相关文献, 也对有关当局完善投资者保护制度尤其是股东投票机制有一定的借鉴意义。
【基金资助】 国家自然科学基金面上项目“中国系族企业集团的形成、演化与经济后果研究” (编号:71272199) 、“国企分类改革、集团重组与治理” (编号:71572201) 的资助;
An analytical framework of minority shareholders governance: the case study on Konka Group
(2.Contemporary Accountancy and Finance Research Center of Sun Yat-sen University)
(3.Custody Department of China Merchants Securities)
【Abstract】This paper explores the motivations, approaches and limitations of minority shareholders participating in corporate governance, based on the case study of Konka Group wherein the minority shareholders first controlled the board on May 28, 2015. From our study, we found that: (1) In the era of high-speed Internet, with the development of legal environment and information channels, the minority shareholders have strong incentives to protect their equity rights. Minority shareholders can more easily realize the tunneling behavior of the controlling shareholder, and make an alliance against the controlling shareholder using the new media. (2) The online voting system has lowered the cost of minority shareholders involved in corporate decisions; meanwhile, the cumulative voting system greatly improves the possibility of minorities to appoint board members on behave of their equity, both of which have been effective ways for minority shareholders to participate in corporate governance. (3) The minority shareholder can lead to chaos in corporate governance and operation if they are in the control position of company, due to their limitations such as the fragile alliance between minority shareholders, the improper governance role and short-term preference. Therefore, we need to evaluate the positive effects as well as the limitations of minority shareholders’ play in corporate governance objectively and comprehensively. Overall, our study provides an analytical framework of minority shareholders participating in corporate governance, which enriches the literature on minority shareholder governance. For the government, this paper also has some valuable implications on the improvement of shareholder right protection and shareholder voting system.
【Keywords】 minority shareholders’ right protection; cumulative voting system ; online voting system; interest expropriation; Konka Group;
【Funds】 National Natural Science Foundation of China (71272199, 71572201);
. ① For example, the online voting system for public shareholders implemented on December 7, 2004, have greatly reduced minority shareholders’ cost of exercising rights. The study of Kong et al. (2013) found that the ratio of the minority shareholders participating in voting was around 1% before the application of the online voting system and increased to 13.2% after the application of the system, which indicated that lower costs for exercising rights can effectively improve the enthusiasm of the minority shareholders’ participation in corporate governance. [^Back]
. ② China Securities Regulatory Commission issued Article 55 in June 2002,, which stipulates that if the additional shares to be issued exceeds 20% of the total share capital of a listed company, the proposal for issuing additional stock should be passed by more than half of the circulating shareholders with voting right at the shareholder general meeting. Provisions on Strengthening the Protection of the Rights and Interests of the General Public Shareholders issued in 2004 makes the following stipulation. (1) When it comes to the following major matters, listed companies should adopt classified voting system, which means that a decision should not only be passed by the general meeting of all the shareholders but also by more than half of the general public shareholders who participated in the voting, before it can be implemented or an application is made. These issues include issuing additional shares to public shareholders, issuing convertible bonds, placing shares with the original shareholders, restructuring major assets, the shareholders using the shares he holds of the listed companies to repay his debt to the company, subsidiary companies have significant influence on the listed company going public oversea into issues which such as the overseas listing and other matters related closely to the interests of the general public shareholders. (2) Listed companies are encouraged to provide shareholders with a network voting platform when holding general meetings, especially when it comes to the important issues mentioned above. (3) Listed companies should actively implement the cumulative voting system when electing directors or supervisors. [^Back]
. ③ The Company Law of the People’s Republic of China stipulates that if company's shareholders hold more than three percent of the company’s shares, they can submit interim proposal (including the nomination of directors) ten days before the general meeting of shareholders to the board in writing so as to ensure the channel for the minority shareholders to nominate directors to supervise and check and balance the controlling shareholders and executives. [^Back]
. ④The data used in this study for the case study of Konka Group mainly come from the announcements released by the listed company, including the annual report, the notices from the board of directors and the general meeting of shareholders. The data related to Konka Group's financial performance and shareholders’ voting and members of the board of directors are authentic and reliable. Besides, this paper also collects some reports of authoritative financial newspapers and some interviews about the major stakeholders of Konka Group so as to further support the analytical reasoning and opinions in the case study with materials of various sources. In general, this paper tries to ensure that the relevant information involved in the case is reliable and authentic. [^Back]
. ⑤ The cases in which the network media influences corporate governance are not rare in Chinese capital market. For instance, in the case of Jilin Zi Xin Pharmaceutical Industrial Co., Ltd., a post on the forum, China Accounting, first revealed that purple Xin Pharmaceutical was suspected of ginseng arbitrage and concealing a large amount of connected transaction information. Then, the letter of accusation drew a lot of discussion on a stock exchange platform of Eastmoney. The repost and report from People’s Daily Online, 21st Century Business Herald, Capital Week and other media made the whole incident boil and clarify, and finally, the incident ended with China Securities Regulatory Commission's investigation. [^Back]
. ⑥ In fact, Holy Time Investment is an investment entity registered in Australia by a famous individual investor, Huang Mushun who also holds some of Konka Group shares owned by Guo Yuan Securities (Hongkong) (Xiong, 2015). [^Back]
. ⑦ The successful implementation of cumulative voting system is rare in corporate governance. A representative case is the electronic appliance incident of Gree Electric in 2012. The institutional investors of Gree Electric used cumulative voting and helped the candidate enter the board of directors successfully through concentrating the votes. Even though the minority shareholder only gained one seat in the board of directors, this event marked the awakening of the awareness of right protection and the functioning of the cumulative voting system in corporate governance, which was a breakthrough. [^Back]
. ⑧ The reason why Konka Group’s performance in the first three quarters of 2015 continuously worsened was complicated. It was partly due to the failure of the previous operating strategy of OCT Group and partially due to the instability of the operating team and the operating strategies caused by the fights over the control right of the company. The frequent personnel changes and the loss of talent as a result of revolutions taken by the minority shareholders after they take control also contributed to the poor performance of the company. Finally, after Dan Liu took the position, he aggressively pushed forward the Internet transformation strategy, which cost a lot of expense in public relation and propaganda, but it would take time for the strategy to come into effects. Therefore, it was hard to improve the operating performance of the company in a short time. [^Back]
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