Legal protection of the membership rights in new rural cooperative financial organizations: from the perspective of rural fund mutual cooperatives
【Abstract】In view of the dilemma posed by the membership rights in new rural cooperative financial organizations, this article analyzes legal protection of membership rights in new rural cooperative financial organizations represented by rural fund mutual cooperatives from three aspects: membership qualification, the rights of common benefit and the right of self-benefit. As for the membership qualification, we should strengthen restriction for membership and improve the way to obtain membership. In terms of the right of common benefit, we should improve the institutions of voting rights, the rights to vote and the rights to be elected. On the right of self-benefit, we should improve the rights to enjoy services, the rights to distribute surplus and the rights to request the return of surplus property after retirement.
【Keywords】 new rural cooperative financial organization; membership right; qualification; right of common benefit; right of self-benefit;
(Translated by LIU Qianqian)
. ① Article 18 of the Interim Provisions of the Rural Mutual Cooperatives stipulates that the farmers’ purchase of shares in the rural mutual cooperatives shall meet the following conditions. (1) They have full capacity for civil conduct. (2) The place of residence or place of habitual residence (where there is a fixed residence and who has lived there up to three years) in the township (town) or administrative village where the rural mutual cooperative is located. (3) The capital of the shares shall be its own funds and the source shall be lawful, and the amount of shares shall be reached as stipulated in the charter. (4) Honest and trustworthiness, good reputation. (5) Other conditions prescribed by the banking regulatory authority. Article 19 stipulates that the following conditions shall be met for rural small enterprises to purchase shares in rural mutual cooperatives. (1) The place of registration or the main place of business shall be in the township (town) or administrative village where the rural mutual cooperatives are located. (2) It has a good credit record. (3) It has profits for the previous year. (4) The net assets after the year-end distribution amount to more than 10% of the total assets (consolidated accounting statements). (5) The capital of the shares shall be its own funds and the source shall be lawful, and the amount of shares shall be reached as stipulated in the charter. (6) Other conditions prescribed by the banking regulatory authority. [^Back]
. ① Article 23 of the Interim Provisions on the Administration of Rural Mutual Cooperatives: the total number of additional voting votes of the organization shall not exceed 20% of the total number of votes cast by the members of the organization. [^Back]
. ② In a cooperative where additional voting members account for more than 50% of the cooperative membership, even if the total number of additional voting rights allowed by the organization is extremely low (e.g. 1%), these members may also control the cooperative by virtue of the 50% of the basic voting rights they already have, plus the additional voting rights. See Zhang, D. On the Members Rights in a Cooperative (合作社社员权论). Beijing: Law Press, 240 (2016). [^Back]
. ① Article 37 of the Interim Provisions on the Administration of Rural Mutual Cooperatives: the qualification of directors and managers of rural mutual cooperatives shall be approved by the territorial banking supervision and administration institutions. The chairman and manager of the rural mutual cooperative shall have a high school or secondary school degree or above, and shall pass the corresponding qualification examination before taking up the post. [^Back]
. ① Notice of the People’s Bank of China and the China Banking Regulatory Commission on the Relevant Policies for Village Banks, Loan Companies, Rural Mutual Cooperatives and Small Loan Companies in 2008, Article 2: the deposit interest rate of an institution approved for deposit absorption shall be subject to cap management, up to the maximum of the benchmark interest rate for deposits of the same grade published by the People’s Bank of China. [^Back]
. ① Article 49 of the Interim Provisions on the Administration of Rural Mutual Cooperatives: the rural mutual cooperatives shall, in accordance with the provisions of the financial and accounting system, draw up reserves for bad debts and distribute profits, and shall embody the principle of accumulation and sustainability in the distribution. Article 50 of the Model Constitution for Rural Mutual Cooperatives: the proportion of dividends distributed by the organization to its members shall in principle not exceed the fixed deposit interest rate of one year. [^Back]
. ① Article 29 of the Interim Provisions on the Administration of Rural Mutual Cooperatives: if the qualification of a member is terminated, the rural mutual cooperatives shall, in accordance with the manner, duration and procedure prescribed in the charter, promptly refund the shares and accumulated shares of the members of the organization. Article 24 of the Model Constitution for Rural Mutual Cooperatives: within one month after the termination of the membership, the organization shall return the member’s share stake and accumulated share in cash. [^Back]
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