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The heart of effective corporate oversight lies in the fundamental right of shareholders to access corporate information. This right is critical for enabling shareholders to actively monitor and supervise both the company’s business operations and its management. Essential to informed decision-making, this right empowers shareholders to judiciously manage and safeguard their investments.
1. Legal Framework for Shareholder Information Rights
Under the Enterprise Law, common shareholders are vested with the right to examine and extract important information of the company. This includes access to the list of voting shareholders’ names and contact details, the ability to request rectification of any inaccuracies in their information, and the entitlement to examine, study, and reproduce key corporate documents like the company’s charter, General Meeting of Shareholders’ minutes, and resolutions.
A significant empowerment comes for shareholders, or shareholder groups, holding 5% or more of the total common shares, or a lesser percentage as outlined in the company’s charter. These stakeholders have broader access rights, encompassing minutes and resolutions of the Board of Directors, semi-annual and annual financial statements, Supervisory Board reports, and contracts necessitating Board approval.
For public companies, the legal provisions governing shareholder access to information are more comprehensive, ensuring a higher level of transparency in the inspection of corporate books and records.
2. Mandatory Corporate Disclosures
Legally, businesses are required to disclose specific information, including details from the Enterprise Registration Certificate, their operational sectors, lists of founding shareholders, and information on foreign investors in joint-stock companies, where applicable. Notably, any alterations in the business registration must be promptly publicized on the National Business Registration Portal.
The Accounting Law stipulates that businesses must release their annual financial reports within 120 days following the fiscal year’s end. However, this is subject to alteration if other laws, such as those governing securities, credit, or insurance, mandate different disclosure methods or timelines. These disclosures can be made through various channels, including publications, written notices, electronic platforms, or as dictated by law. Despite this, the reality is that many companies, unless they are publicly listed or operate in specific sectors like securities, credit, or insurance, often do not disclose their financial reports.
In addition, the Securities Law lays down explicit disclosure requirements for public companies. These entities must regularly disclose information such as annual financial reports, general meeting details, and governance structures. Additionally, they must report extraordinary events and other significant activities. This framework ensures that public companies are held to higher standards of information transparency compared to their private counterparts. This enables shareholders of public companies to access a broader range of corporate information more readily.
3. Challenges and Obstructions
In the complex web of corporate governance, shareholders’ right to access information is both a legal entitlement and a practical necessity. Yet, the journey from legal entitlement to practical exercise of this right is often fraught with challenges and obstructions.
a) Example No.1
For example, a crucial aspect of shareholder rights under the Enterprise Law is the right to “review, search, and extract information” from the list of voting shareholders. For ordinary shareholders in joint-stock companies, this right is perceived as an entitlement to access the comprehensive list of all company shareholders. This access is not merely a procedural matter but a strategic tool enabling shareholders to collaborate, meet necessary ownership thresholds for exercising specific rights, nominate candidates, or pool votes during elections.
However, this right is mired in ambiguity and practical hurdles. Some corporations interpret this provision narrowly, assuming it only allows shareholders to access their personal information, not the entire shareholder list. This restrictive interpretation undermines the ability of minority shareholders to mobilize support, as acquiring the comprehensive list becomes a logistical and sometimes insurmountable challenge, particularly when company headquarters are geographically distant.
This situation often results in a form of rights infringement, as minority shareholders struggle to gather the necessary support for exercising their legal rights under the Enterprise Law. This challenge raises a pertinent question: what recourse do shareholders have if a company withholds the shareholder list?
b) Example No.2
Another significant aspect under the Enterprise Law is the right of shareholders, especially those owning 5% or more shares, to scrutinize contracts and transactions overseen by the Board of Directors. This oversight is critical for safeguarding the company’s assets and preventing mismanagement.
However, this well-intended regulation encounters practical barriers. A frequent point of contention is the exemption of documents deemed to be trade secrets or business secrets. The challenge arises from the lack of specificity in defining what constitutes such secrets, leaving room for subjective interpretations by the companies. This vagueness often leads to a restrictive application of the law, hindering shareholders from accessing crucial information that is fundamental to their oversight role.
In practice, these limitations have forced shareholders to seek legal redress through litigation or arbitration to assert their information rights. These legal actions underscore the necessity for shareholders to secure detailed judgments from courts or arbitration panels.
4. Moving forward
The exploration of shareholders’ rights under the Enterprise Law, particularly regarding access to corporate information, reveals a complex interplay between legal entitlements and practical application. While the law aims to empower shareholders with greater oversight and involvement, ambiguities and operational hurdles often lead to conflicts between companies and their shareholders. To foster a harmonious corporate environment while safeguarding shareholder interests, companies should proactively develop and implement comprehensive internal policies regarding information disclosure. These policies should detail the types of information accessible, the procedures for requesting information, and the guidelines for protecting confidential data. A transparent and consistent policy would mitigate misunderstandings and reduce the likelihood of disputes.
