Keywords:: State-owned enterprise board governance mechanism construction
Are you online? Eleventh five-year plan? During this period, corporate governance is still one of the most important contents in the reform of state-owned enterprises. According to the design of corporate governance structure in China, the corporate governance structure of state-owned enterprises consists of shareholders' meeting, board of directors and board of supervisors. The shareholders' meeting is the power organ of the enterprise, the board of directors is the permanent institution of the enterprise, the board of supervisors is the supervision institution of the enterprise, and the board of directors is in the core position and plays a core role in corporate governance. However, from the governance of state-owned enterprises, it is difficult for the board of directors to play the role of system design because of institutional factors and imperfect mechanism of the board of directors. Therefore, only by taking corporate governance as a systematic project, perfecting the mechanism construction of the board of directors and implementing the independent director system in state-owned enterprises can the board of directors fundamentally play its role and promote the reform and development of state-owned enterprises.
I. Review of the operation of the board of directors of foreign companies
(A) the US-UK model
The United States and Britain adopt a single-layer board structure. The board of directors is the permanent body of the shareholders' meeting, and its functions and powers are granted by the shareholders' meeting. In internal management, the board of directors of American and British companies has two characteristics: First, different committees are set up within the board of directors to assist the board in making decisions. Second, the company directors are divided into internal directors and external directors. Internal directors hold important positions in the company, and external directors occupy the majority in the company's board of directors, but generally do not hold positions in the company. The supervision of the board of directors and managers is implemented by establishing an independent director system [1].
(B) Japan-Germany model
Basically, companies in Japan and Germany adopt a two-tier board structure, that is, a dual committee system consisting of a board of supervisors and a management committee. Management and supervision are completely separated [1], and the board members of Japanese companies are mainly composed of lifelong employees promoted from the lowest level within the company; However, the functions of the supervisory boards of Japanese and German companies are also different.
(3) Family model
A form of governance based on family business. The board of directors is controlled by the family, and the general manager takes orders from the board of directors or the chairman, so the family control is high.
The first-level manager is responsible for the daily operation and development of the enterprise.
Second, the problems existing in the operation of the board of directors of state-owned enterprises
China's corporate governance draws lessons from the advantages of the American-British model and the Japanese-German model and sets a typical example. Separation of powers? The board of directors is the core of the governance model. Although the design of this corporate governance model is perfect, the board system is still not perfect in terms of operation, and it is difficult for the board to play its due role.
(A) the lack of system
For state-owned enterprises, the company law is the constitution of the enterprise. Articles 4 1, 45~49, 66~69, 102, 109 ~ 165438 and 123 of China's new Company Law involve limited companies and wholly state-owned companies respectively.
1. The Company Law does not stipulate the comprehensive qualities that directors (including external directors) and independent directors should possess. The quality of directors (including external directors) and independent directors is uneven, and their abilities are quite different, which affects the correct decision of the board of directors.
2. The Company Law does not stipulate the remuneration of directors (including external directors) and independent directors, especially appointed external directors, who are unpaid and have low work enthusiasm. Their understanding of the board of directors is dispensable, which shows that they do not attach importance to board meetings, thus affecting the decision-making of enterprises.
3. The Company Law does not make it mandatory for directors (including external directors) and independent directors to go to the company where they work to investigate and write research reports, and the time for investigation and research is mandatory.
4. The company law stipulates that listed companies should set up independent directors, but it does not stipulate that state-owned enterprises (unlisted companies) should set up independent directors, which is helpful to promote the reform and development of state-owned enterprises.
5. The Company Law does not stipulate the legal liability of directors of limited companies and wholly state-owned companies for the resolutions of the board of directors.
(b) The operator actually controls the board of directors.
In state-owned enterprises, the governance structure needs to be further standardized, scientific, legal and concrete. The chairman and general manager of state-owned enterprises shall be held by one person, and the chairman or general manager shall be appointed by the government. The role of the board of directors is not obvious, and the controlling shareholder and company manager are the actual controllers of the enterprise. They seek economic and political benefits for themselves through shareholders' meetings and board meetings. The voting behavior of the investor's representative at the shareholders' meeting is restricted by the government's behavior, so it is difficult to objectively express opinions on the production, operation and financial accounts of the previous year and the production, operation and financial budget arrangements made by the management for this year. There are two reasons for this situation: first, because shareholder representatives are unfamiliar with the production, operation and financial situation of enterprises, they cannot make correct judgments; Second, investment representatives or external directors are bound by government actions. At the same time, when enterprises elect internal directors, they always choose people they trust, because who wants to put people with different opinions into the board of directors?
(3) Directors are not sensible
The directors of an enterprise are composed of directors produced within the company and external directors or independent directors appointed by investors. For the external directors or independent directors appointed by investors, there is indeed the actual situation that directors are not sensible. Not sensible? It means that directors are not familiar with the production, operation and financial situation of the enterprise and cannot express convincing opinions on the board of directors. The main reasons are as follows: first, the behavior of directors is constrained by the appointed units, especially local governments, which still directly or indirectly manage state-owned enterprises, and external directors should obey the needs of government management; Second, external directors have their own jobs, not full-time; Third, the external directors did not spend time and energy on the necessary investigation and study of the enterprise, did not spend time thinking about the production, operation and financial situation of the enterprise, and could not write analytical materials; Fourth, the personal quality of external directors needs to be further improved, and directors should have professional knowledge and higher professional titles or other professional qualifications.
(D) External directors have poor access to corporate information.
As a director, you should know everything about the affairs of the company. However, in the Company Law, there is no clear provision for external directors (including independent directors) to obtain information about their employment in state-owned enterprises. In other words, external directors have no access to information related to enterprises, or access to information related to state-owned enterprises is not legally determined. Therefore, in practice, it is not surprising that there are a large number of directors (here refers to external directors) who are not sensible. Because there is a basic asymmetry between external directors or independent directors and full-time directors and management of enterprises in obtaining relevant information of enterprises, there is an information gap between them. Specifically, when the board meeting is held, the debate will be one-sided due to the asymmetric information obtained by the directors who are employed by the management and those who are not employed (external directors) [4], but the balance will eventually fall to the management.
(5) The behavior of directors and senior managers is not standardized.
As the core of corporate governance, it is very important to standardize the behavior of directors and senior managers. The board of directors has not yet formed a unified code of conduct for directors and senior managers. What kind of professional code and moral code should they abide by, so that directors and senior managers have no standardized code of conduct?
Third, improve the idea of the board of directors of state-owned enterprises.
The core of strengthening corporate governance is to establish an independent, efficient, transparent and scientific internal board of directors. To achieve this goal, we must improve and perfect national laws and regulations and related supporting systems, and strengthen the implementation of the system.
(A) to further improve the "Company Law"
To strengthen corporate governance, it is important to strengthen and improve the company law. Pay attention to absorb the reasonable elements of western culture that emphasize the rule of law, promote the construction of our legal concept and legal consciousness, and promote the formation of our legal concept.
1. stipulates the establishment of an independent director system in state-owned enterprises. Article 123 of the new Company Law stipulates that a listed company shall set up independent directors. In western developed countries such as Britain and America, the company law usually clearly stipulates that the board of directors of joint-stock companies must have a certain proportion of independent directors [1]. However, in China's company law, there is no provision for the proportion of independent directors set up by listed companies, so it is very important to make it clear in law. At the same time, a good system like the independent director system will undoubtedly play a positive role in accelerating reform and promoting the healthy development of state-owned enterprises by introducing state-owned enterprises or unlisted companies and establishing an independent director system in state-owned enterprises.
2. Clarify the responsibilities and authority of directors and independent directors. The Board of Directors shall set up special committees such as Audit Committee, Remuneration Committee and Risk Control Committee. , and clearly give the appointment and removal authority to senior managers and the review authority to formulate relevant internal control systems of enterprises.
3. Clarify the legal responsibilities of directors and independent directors. In the new Company Law of our country, the illegal or negligent behavior of directors is not clear, and there is no specific compensation for directors' income and losses caused by illegal or negligent behavior. In the United States, various laws and regulations have made detailed legal appraisal of directors' responsibilities and obligations, evaluation criteria of directors' responsibilities, and civil liability for dereliction of duty or dereliction of duty.
4. Specify the proportion of independent directors. The Guiding Opinions on Establishing Independent Director System in Listed Companies stipulates that the proportion of independent directors in listed companies shall not be less than one third. This provision should be introduced into the company law, clearly defined in law and clearly applied to state-owned enterprises, which will help improve the management of state-owned enterprises and improve the independent director system.
5. Restrictions on the appointment of independent directors. First, independent directors cannot serve as independent directors in multiple enterprises and should not serve more than five enterprises; Second, independent directors cannot hold positions in affiliated enterprises at the same time.
(2) Establish the code of conduct for directors and senior managers.
The state formulates a unified code of conduct for directors and senior managers through trade associations, stipulates the code of conduct for directors and senior managers, defines their professional qualities and ethics, judges whether directors and senior managers perform their duties, and announces to the public the system for those who fail to perform their duties (in industrial national journals). This is conducive to improving the governance structure and effectively preventing and resolving the problems of state-owned enterprise operators based on principal-agent relationship. Moral hazard? .
(3) Establish a new unified remuneration system and research funding control system for external directors and independent directors.
1. The remuneration of external directors and independent directors should be determined from the system, that is to say, it should be stipulated in the company law. Closely link the rights, obligations, responsibilities and interests of external directors and independent directors. At the same time, we can learn from the advanced method of transparent account [3] adopted in the United States, closely link the interests of managers and shareholders, and establish a unified salary payment account for external directors and independent directors, which is conducive to the review and supervision of shareholders and external audit institutions, and promotes the close relationship between the interests of external directors and independent directors and the interests of shareholders and all stakeholders. However, the remuneration of independent directors or external directors is not directly received from state-owned enterprises, but is put into the special account of SASAAC by the state as a whole, and paid after the independent directors or external directors are assessed by SAAC.
2. For external directors and independent directors to carry out research work in the enterprises where they work, they shall subsidize the expenses incurred in the research according to the number of investigations within one year. The source of funds can be dividends from state-owned assets or financial funds, and a quota should be approved accordingly. In this way, the work of external directors and independent directors can be effectively guaranteed.
(4) Establish a selection system for independent directors.
If the emergence of independent directors is to be scientific, it is necessary to establish a scientific independent director selection system. Therefore, it is suggested to establish an expert database system for independent directors to centralize the experts who apply for independent directors for institutionalized management. Can we learn from the establishment of an expert database system for independent directors? Sichuan bid evaluation expert database? Suggestions on construction management experience will be published and implemented to the public in the form of law after being reviewed and approved by the National People's Congress. Specific provisions: strict procedures for entering or exiting the expert database of independent directors; The quality requirements of independent directors, including professional quality and moral quality, should be no less than four times a year to investigate the enterprise and write investigation and analysis reports, and the board of directors should not be absent every time; Follow-up education and training of independent directors; The time necessary for independent directors to perform their duties on the enterprise, such as the time needed to arrange the investigation of the enterprise, is used for the investigation and study of the enterprise. Independent directors are classified according to their majors, and enterprises are selected by specialized agencies from the expert database of independent directors according to their own conditions.
(5) Establish training institutions and systems for directors and independent directors.
1. The state has set up an institution specialized in training directors and independent directors, or cooperated with internationally renowned institutions to be responsible for the training of directors and independent directors of state-owned enterprises, and state-oriented universities have compiled teaching materials.
2. SAAC shall establish a unified regular training system for directors and independent directors, and conduct off-the-job training for directors and independent directors on a regular basis every year. After the training, a rigorous examination should be conducted, and those who fail the examination are not allowed to work again. Formalism is not allowed in training and examination. The purpose is to improve the comprehensive quality and ability of directors and independent directors through training.
(6) Establish an external supervision system for directors and independent directors.
1. Establish a system to disclose the assessment of directors and independent directors to the public (through the media).
The evaluation committees of directors and independent directors in each province make an objective and fair evaluation of the work of directors and independent directors in the past year, and announce it to the public in the media, and the society participates in supervision. In this way, incompetent directors and independent directors can be widely supervised by the whole society and can better promote the improvement of personal integrity, professional ethics and decision-making level.
2. Establish an evaluation committee for directors and independent directors.
All provinces have established an evaluation system for directors and independent directors, which is located in the Finance Department or SASAC. Formulate assessment rules. First, directors and independent directors provide their own personal work materials and submit them to the evaluation committee of directors and independent directors, and then the committee will go to the enterprise to investigate and verify and put forward its own evaluation opinions.
3. Establish the evaluation and publication system of excellent board of directors.
The board of directors is not only an institution, but also a group of people. An ideal and excellent board of directors is a group of people with good quality, good quality, self-discipline, close cooperation, fairness and integrity. The board of directors will conduct regular reviews, with the participation of enterprises, academia and society, and finally select the outstanding board of directors, and publish the selection results in large national journals, with the participation of enterprises and academia. Supervise the inactive board of directors through evaluation and urge them to replace new people.
Four. conclusion
Perfecting the operation of the board of directors is the core content of corporate governance of state-owned enterprises. Only by legally establishing and perfecting the system that directors and independent directors have the same responsibilities and rights, the same labor income, and the open and transparent assessment can we fundamentally solve the problem.
refer to
[1] corporate governance practice and system construction of listed companies? On the operation and management of state-owned assets [D]. Economic Management Press, 2005
[2] Little John? Corey, Wallace? Stedding news, George? Logan, Jacqueline? Doyle, by; Li Weian, et al. Corporate Governance [M]. Published by China Financial and Economic Publishing House.
[3] Left, edited by Cheng Hangsheng, the reform and governance of state-owned enterprises in China: an international comparative perspective [C]. Social Sciences Academic Press, 2005.