중국법상 신주발행제도에 관한 법적 규제

Abstract

Broadly speaking, the ‘Issuance of New Shares’ takes place when the corporation is established and needs money in order to expand the scope of business or the business scale. So, it can be said, ‘Issuance of New Shares’ is the product of the development of the market economy, because the company must constantly finance when it requires developing. However, the law system concerning the Issuance of New Shares is so strick and complicated in China, so the company prefers to finance via the bank rather than Issuance of New Shares. First of all, the capital system is the basic in the issuance of new shares system. Chinese Corporate Law takes Statutory Capital System, providing that the issuance of new shares must be adopted by the special resolution of shareholders' meeting. Statutory Capital System leads to time and cost inefficiency in the issuance of new shares. Secondly, Chinese Corporate Law does not provide shareholders’ preemptive right. The so-called preemptive right means the right to purchase shares issued after the incorporation of a company limited by shares. Because shares are usually offered to shareholders below the market price, the preemptive right has a very important role in maintaining shareholders’ proportional interest and economic interest. To solve the above problems, Chinese Corporate Law should introduce Germany's Approral Capital System or Korea's Authorized Capital System, which means China should consider authorizing the board of directors to decide the issuance of new shares, and admitting shareholders’ preemptive right, so as to protect shareholders’ proportional interest and economic interest. Thirdly, Chinese Securities law prescribed Verification System in the issuance of new shares. According to Chinese Securities law, both public offering and non-public offering require CSRC's verification. This is why it is difficult to issue new shares. Although the Chinese Securities law is strict in the access system, Verification System does not adequately protect the interests of investors due to its relatively weak sanctions,. To solve this problem, China should adopt Korea's Registration System and remove non-public offering from the Registration System. Besides, China should regulate the sanctions more strictly in order to combine the issuance of new shares and the protection of investors’ interests.