本文是一篇关于少数股东权利保护及投资者信心的新西兰家庭作业，内容充实，逻辑性强，主题：Minority shareholder rights protection and investor confidence
摘要 Summary
最近的研究发现,国家所有权集中度、资本市场发展、投票权的价值和使用外部融资制度差异等问题影响公司治理结构。更重要的是,这些差异似乎和少数股东投资者的法律保护更加密切相关的。反过来说,法律保护水平,似乎取决于国家法律制度的性质和起源、随后的改变。特别是在保护投资者方面,远远超出了大陆法系的法律制度。反过来,这又刺激了资本市场的增长和所有权的分散。因此,集中和分散的两种截然相反的所有权公司，每个系统都需求不同的公司治理结构。Recent study found that on the corporate governance structure between countries in the ownership concentration degree, the development of capital market, the value of the voting rights and the use of external financing has the institutional differences such as problem. More importantly, these differences seems to legal protection of minority shareholders investors are closely related. The level of legal protection and, in turn, it seems, depends on the nature of the national legal system and origin, and subsequently and change. Especially in providing protection to investors, far beyond the common law system of continental law system. This, in turn, and encourage the growth of the capital markets and dispersed ownership. As a result, the company in the ownership concentration and ownership dispersion system of two opposite, and each system has different corporate governance structure.
1.0 背景 Back ground
If indeed related legal system, understanding of the correlation and shake the foundations of neoclassical theory of corporate finance. Most modern writings about ", "law and economics assumes that the regulation of financial markets is unnecessary, and assume the role of the company law only is to provide investors with a demonstration of format contract, save the contracting costs to investors. About regulation is unnecessary or think will make the situation worse conclusion is based on the following two premises:
Experienced counterparty can according to their specific situations, to develop more than any standardized regulators expected, more detail more sensitive, complex and contract.
Entrepreneurs in order to maximize the value of their shares, their growing the company into the capital market, have enough power to minimize agency costs. In short, because according to the standard model, Jensen and MeCkling entrepreneurs pay for agent, so they have enough reason not to hold deprive investors the discretion of wealth. Therefore, the regulation seems to be no necessary. According to this view, public choice theory in the theory of interest group and rent-seeking is the best theory to explain why regulation is necessary.
To a large extent, however, think that the financing contract to regulate meaningless argues that does not explain why the development level of a national capital market and it has a close relation between the legal system. More logical conclusion is that the law is the need for regulation, this is more than just rely on financing contract can improve economic efficiency. Private contracts does not produce enough to maintain active securities market information disclosure system.
However, even if the evidence about the role of regulation, also did not accurately tell us, what kind of regulation does work better than financing contract. It also does not tell us, the best legal system including those factors. Other also makes some exceptions to this conflict between common law and continental law has become blurred. For example, that the American and British law system arises from the common law tradition, so the system is more perfect, this view ignores the large number of relevant historical facts.
If, in short, focus our attention only the law system of common origin, will cover the ownership structure and market characteristics of the two countries are similar to play the important role on the function mechanism of different. In addition, although recent comparative study on corporate governance structure is impressive, but a lot of focus on enterprise level, the study only looked at the company law and the characteristics of the bankruptcy law, it is considered that the two laws established a high standard of investor protection. Although this discussion is very important, but it ignores the importance of the securities market itself. In both Britain and America, a common characteristic is that there are significantly developed securities market, and has high standard disclosure and transparency. Instead of the securities market success to the commonality between the American and British law, it is better to put it to Britain and the United States securities laws are more obvious commonality above more meaningful. In terms of generating function coupling, the two countries listed, disclosure and corporate governance structure similar to that of standard than shareholders can help way of law relief is more important. The purpose of this mechanism is to create reputation capital, it can actually be mortgaged to investors, and offsets the defects of specific national legal system. Finally, the function of securities market coupling than company law in the legal form of coupling is easier to achieve, not only because of this big company can choose between different market, but also because of the securities market itself in the face of global competition and change, to adapt to, even if the government resist the change.
Recent comparative study on corporate governance structure clearly focused on the reform of economic transition. In particular, there are many scholars try to previously in the transformation from socialism shell transition countries in the implementation of effective corporate governance system, and comparative study of the recent seems it is the natural extension of these early efforts and failure. Early experiments soon showed two strong trend: first, the securities market are fragile and likely to collapse. Second, managers and controlling shareholders may be deprived of their property on a large scale. Most of scholars's response is a persistent called for legislation reform, adopt "common law" is the main system. Reform may be worth a try, but calls for legislative reform or formal legal change often cannot be aroused people's concern. In the world of the conformity, which may be just because politically impossible, can't change. Even though most of us are very clear this transition is effective, and may contribute to economic growth.
It is because of these reasons, people's outlook is more sensible to search function and axle. Instead of insisting that the common law in the foreign legal system, as to define through a variety of legal mechanism can get function target are more practical. Based on this thinking, this paper will briefly introduce in transition countries without legal preparation, tried to introduce error of mass privatisation. Our purpose is not to criticize these early efforts, but rather to identify common categories. Finally, we suggest that don't transplant specific doctrinal principles, but give priority to the function of transplanted, it is in British and American legal principle was adopted in the whole premise is not feasible to make a conclusion.
2.0 犯罪和主要错误 Crime and major error
In 1995, there are 1716 companies listed on the stock exchange in Prague. Due to the inflation rate is relatively low, and the employment rate of almost one hundred percent, so this kind of central and eastern European countries given the strong macro economic status as the transition to the market economy will be very smooth. But the truth? In early 1999, quantity tumbled more than 80% of listed companies, there are only 301 left. Observers expect the 301 home, at least a dozen be insolvent. At the same time, 50 kinds of Prague stock exchange main index of investment value also fell 60% accordingly. Trading dried up, Prague stock exchange own existence is threatened. All 1997 in 1997, the trading agent, and the middle of 1999, only 358 brokers. In short, it is a huge market failure.
Why is this so? Mostly because investors largely lost confidence, at the same time, scattered small shareholders have seen the Czech investment fund widespread deprivation, also witnessed the companies in the Czech republic, once any faction requirements control role, will naturally make use of the minority shareholders. The small shareholders and completely lose shares to other forms of investment. When the Czech republic began to implement mass privatisation, more than 700 Czech citizens through warrants to purchase shares, but by 1999, the Czech republic, the number of shareholders dropped to only 5 million people.
The experience of the Czech republic is the legal system is not sound caused by the start of an example of market failure, when investors began to also is optimistic, but then lose the confidence on the Czech market. So although basic macroeconomic conditions within the scope of the region is relatively stable, but the market is still down. Further, the Czech republic's apparent failure and its neighboring Poland's experience is in stark contrast. In Poland, the privatization process is slow, and as a prerequisite, Poland established a relatively perfect disclosure mechanism and governance standards. After a brief review of the experience of the surface, this section will be on other privatisation plans are more conclusive assessment, and discuss the impact of the Asian financial crisis.
A. Poland and the Czech republic: the different ways of privatization. From the perspective of geopolitics, Poland and the Czech republic share many similarities, they have the same Slavic culture, as the central European country member of the Slavic group, they have the same history. But they are a far cry from the privatisation of the way. The Czech republic in the early 90 s hurried privatisation, only later to a series of crises and rumors. The Czech government decided to put the assets transferred to the private sector as soon as possible after privatization first climax in the Czech republic, will 1491 privatisation of the joint venture co. LTD., in the second wave and privatization of the 861 companies. As a result, the proportion of the private sector in the Czech gross domestic product (GDP) increased from 12% in 1990 to 74% in 1996.
Instead, polish privatization is very slow and ambiguous, privatization only 500 companies, and follows the state founded by investment funds as the privatisation of the company's controlling shareholder each step. In addition, Poland is neither allows you to create a private investment fund, initially does not allow citizens to invest in emerging private company stock directly. Polish citizens legal authorization, however, can put their warrants investment in the creation of national financial intermediary, the state-owned investment funds, fund's role as the privatization of the controlling shareholder of the company. Only authorized established at the beginning of 15 state-owned investment funds, each fund allocated 500 private companies controlling interest is 331/3%. Each company the rest of the stock is controlled by state-owned investment funds and other countries, each state investment fund to hire a management company to perform similar to mutual fund investment adviser in the west of duties. In fact, many western investment Banks is employed to manage state-owned investment fund, sometimes preferred commercial Banks in Poland. Of course, when choosing a management company, lobbyists will be carried out in the fierce competition. In short, as a result of the Czech government the country continue to ownership as a very serious crisis, so it hastily privatised, and to pay attention to the management of the problem. In Poland, the country's designers reform is slow privatisation, carefully perform limited privatization program, this solution effectively directly with state monitoring of replacing the countries in the form of all.
The results of the two different ways is predictable: the Czech republic quickly establish active securities market, securities market and Poland are very little volume, slow development in the wandering. In the Czech republic, the generation of private investment fund is natural in the development of securities market, do not need to be planned results. Two privatisation climax in the Czech republic, there are more than 600 fund formation, naturally, these funds can only be regulated after the fact. On the contrary, in Poland, due to the constant interference of the many problems of political disputes, privatization has been delayed.
Two systems are met a serious problem, but the nature of the problem is quite different. There are three obvious problems existing in the destroyed the privatization, the Czech republic, each question in the final analysis is due to the failure in the eyes of the law. Another problem, which is the most notable problem is almost no transparency in the securities market, the Czech republic because of trade concentration, and Prague traded otc stock exchange price report is not required for the same period, so only those transactions participants are willing to disclose the transaction price will be reported.
In fact, 97% of the trade outside the stock exchange in Prague, and within the remaining in a small trading is widely considered to be conducted based on inflated prices.Only when traders want to published prices, the current stock price will indeed be disclosed. Partly because during this period, the lack of any like the securities and exchange commission's authority to regulate for the deal or the same time can have the right to require disclosure of price, so foreign investors to Prague soon the price of the stock exchange doubt whether can reflect the real value. In addition, in the opaque world, obtain information of trade than in a standard effective market trading is much more profitable.
The second problem quickly emerged, it undermines efforts to restructure. Twice in the Czech republic to privatise climax about formation of more than 600 investment fund, they are fierce competition, in order to persuade individual investors to put their holdings of warrants converted into shares in the investment fund. These media has the potential to be effective monitoring company originally, because they focus a lot of rights and interests of the Czech company, has the potential to solve the warrants privatisation has inevitably produced the collective action problems caused by dispersed ownership. However, the Czech republic's biggest investment fund is established by a major commercial and savings bank, they deposit the warrants in persuading the Czech company people their funds with the credibility of obvious advantages. But these Banks on their own investment fund has only very few rights and interests, so they have no way, in a costly restructuring activities. On the other hand, many Banks are using their investment fund for securities companies, the influence of to keep their customers. Most Banks manage the funds do not try to focus on their shares, for they have a stake in diversified instead, aimed at as much as possible with interests in the company, part of motivation is to attract their parent bank business customers. At the same time, in order to prevent their parent Banks from the threat of potential hostile takeover, bank the operation of the fund to invest heavily to bank parent company's common stock. The cross shareholding of abnormal network rapid development, make major Banks would not be hostile takeover. In the end, most of the private fund found focus on trade than to reorganization of the low efficiency of securities companies are usually more profitable. Market opaque and fund as insider privileged position makes profitable trading, but often makes the media with the informed trading scandal happened again.
Unrelated investment funds with the bank even more serious scandal, while the Czech law on the operation of the investment fund regulation, but the law has not decided to cancel the registration of investment fund, or for the regulation of the holding company. According to the civil law literally special meaning to explain, the Czech law, the difference between the investment companies and holding companies is just not in the form of the function. By giving up the investment of the company's business license, the investment fund in fact can avoid all the controls. Because investment company shares ownership is dispersed, 10% of the voting stock of company only to a small group are often can control the general meeting of shareholders, and by putting funds into the decision of the holding company. Once is not regulated, all forms of self trading can be effectively, and the entity can be in the Czech republic to become a venture overseas.
The conversion of scale is very large. In terms of market share, the Czech privatisation first climax in the 28% investment private funds, and 21% in the second wave of funds are transformed into holding company. Although it looks as if the proportion of conversion decreased, but the second climax of the other 21% of the funds in the "mandatory management", means that the funds have been unable to pay his debts, this is usually caused by self trading. Banks operate the main funds usually don't take part in the transformation of competition, but their motives may be use fund as a tool to maintain the customer of the bank.
The ultimate outcome of these repetitive scandal is the management of investment funds into the Czech republic a controversial political issues, contributed to Vaclav the collapse of the government, and led to the 1998 securities legislation reform bill through. But this time, the public confidence in the securities market has been serious damage.
The experience of Poland and the Czech republic in many ways is just the opposite. Because for disclosure on the drafting of regulations and director's fiduciary duty standard, so privatization been delayed again and again. Polish citizens have only one choice: can determine where a state investment fund to invest in, but are not allowed to invest in securities companies or private investment fund. Trading on the Warsaw stock exchange, price transparency has never become a serious problem. Most of the critics made a high assessment to the disclosure of Poland, the European bank for reconstruction and development economic transition report Poland and Hungary as the closest IOSCO standard two central European countries).
However, although the polish government carefully designed for market reform and privatization scheme, but they actually got in the development of securities market how successful is very doubtful. At the end of 1998 only 253 companies listed on the Warsaw stock exchange. In fact, polish mass privatisation is limited to 500 companies, only 10% of gross domestic product of listed company of Poland. Despite the government's establishment of the financial media monitoring as whether work remains unclear, but Poland's state-owned investment funds do have concentrated the rights and interests, and most of the Czech republic's funds to avoid concentrations of rights. Is the most strong contrast in the Czech republic and Poland experience in the aspects of market performance: when the 1998 Asian financial crisis, Poland, the impact is relatively small. From late 1996 to August 1998, the stock index fell only 13.1%, while the Czech market part of the collapse and continue to fall. On the Warsaw stock exchange listed state-owned investment funds almost is traded in the value of net assets, and the Czech republic funds are often based on the net asset value greatly discount can only be traded. Although Poland's privatisation scheme is vulnerable to attack, think this is just a small, from top and bottom of the reform, no real transfer assets to the private sector, but Poland's securities market because of its high degree of transparency and disclosure to win investor's great trust, deprivation also does not become a major problem. The result may be that Poland is better than other similar economic transition country successfully passed the 1996-1998 Asian financial crisis.
B. the privatisation of the other countries experience: can spontaneously developed securities market? Although the experience of the Czech republic and Poland is probably the most accord with the nature of private field trials, but these experiences are not unique. A brief review of the achievements of early privatisation, you will find after investors lost confidence, the emerging stock market would collapse similar examples, including the United States. Although privatization is in 1979 the British withdraw, after the government's efforts to sell state-owned enterprises only popular, but still can find out much earlier. Mass privatisation of public investors for the first time can be traced back to 1961, when the federal republic of Germany adenauer's government in view of the small investor in Germany, in a public offering to sell a majority stake in Volkswagen. Then in 1965, the government all the VEBA co., LTD and the larger the prospectus. The two offerings are initially successful, but then the stock price fell sharply, making the government had to take "a rescue measures, designed to protect small shareholders". Experience makes Germany or other European governments are no longer similar
privatization program, it was not until 1979 that the thatcher government started the mainstream ideology for privatization.
In the early 70 s, Chile's augusto pinochet government put allende government nationalized enterprises privatisation again. Selling price. Later, when Chile's economy in the early 80 s by the impact of the debt crisis, nationalised many again are private enterprises. Until the late 80 s Chile to sell shares of state-owned enterprises to the public through successfully carried out the privatization program. The successful privatization is the main events in Chile in 1990 telephone company privatization, it mainly by the us securities depositary to U.S. investors. Mexico in the 90 s large-scale successful privatization program are also listed on the New York stock exchange through direct Mexico's big state-owned companies.
Don't mass privatisation through developing exchanges, such progress is not very well. The most obvious example is, of course, Russia. Russian privatization and privatization of the Czech republic are quite different, mainly because of Russia to a large number of shares as political tasks to in-service managers, this is very important to the implementation of the privatization. Results are predictable: privatisation after two or three years, minority shareholders have sold shares to the company, to produce the highly concentrated ownership structure, it is quite common in other countries. Although one would think that this movement toward the high ownership concentration can improve the efficiency, but obviously Russia's economy has started to complete collapse. In 1998, the Russian government defaulted on its domestic and international debt due, the RTS stock market index than almost 11 months ago fell 90%. Indeed, there are correlation does not mean causation. But, unless emerging private company is listed on the international stock exchange, or they can't maintain dispersed ownership, and this seems to have become a common model, although there are a few exceptions occur occasionally.
C. the ownership concentration appear again. Both Russia and the Czech republic, to the public by sale or assignment privatisation warrants and implement mass privatisation are inevitably leads to a highly fragmented ownership structure - but only in a short period of time. With the passage of time, the ownership concentration appear again. Considering the large amount of research that privatization company efficiency raised, so some research efficiency due to ownership concentration, this is not surprising. For example, a very detailed study on the privatization of 706 Czech companies during 1991-1992 made a sampling survey, assessment of their performance in the 1992-1995. The founder of the study concludes that the more concentrated the ownership, the more yield and the market price increase.
Unfortunately, the study examination as of the date of in 1995, and then the Prague stock exchange prices began to fall in an uncontrolled manner. But the researchers argue that the stock market value is too high due to holding group in the formation and control stock section, and this is just a short-term phenomenon, at this point, the study may is in line with their current situations.
Let us assume that the ownership concentration of emerging private company initially did better than dispersed ownership company, this means that it is characterized by the ownership concentration than is characterized by dispersed ownership of the economy will, at least in the economic transition, the economy - more efficient? The conclusion of the problem is that the benefits of ownership concentration is just a flash in the pan, and the cost was not apparent until later. Even if the ownership concentration can make management monitoring more powerful, but it benefits at the expense of the increase the risk of holding shareholder. The deprivation of securities market in danger of collapse. Not only the experience of the Czech indeed, and recent research also believes that a similar situation has happened in the countries all over the world. 1997-1998 Asian financial crisis to most of the growth in the market economic development has a negative effect, although the degree is different. Most analysts think the crisis is caused by the macroeconomic policy and banking policies, but a new very provocative study suggests that the legal system of the corporate governance structure of weak exchange rate in the Asian financial crisis and the fall of the stock market has a significant impact.
In essence, the study argues that when the return on investment fell, deprivation rate will rise. In short, managers and controlling shareholders trying to steal something in the period of recession than steal things when economic conditions are good - the investor anticipated. Therefore, when a region of the impact of the financial system is constantly, in the legal system for the protection of the minority shareholders to provide the most weak landslide is one of the biggest regional economy. With recent 25 emerging markets open to foreign huge hot money as an example, the study concluded that in 1997-1998 crisis, shareholders and creditors' rights to the execution of the adverse decision is the most important factors to control the exchange rate to fall. In fact, the legal system of three indicators, namely "judicial efficiency, corruption and the rule of law", "is expected to grow in the market exchange rate changes than the macroscopic measures to implement standard". Other measures reflect the size of the shareholders' rights is also closely associated with the severity of the financial crisis, but it is only when these measures reflect the rights of shareholders is how to implement "just so. In short, the protection of the law is an independent variable, can most effectively predict the financial crisis of independent variables.
3.0 结论 conclusion
Now, it is necessary to review the experience of the Czech. As mentioned earlier, some studies suggest the privatisation of the company due to the more concentrated ownership, higher profits. But as time goes on, the situation is like this? Then stock exchange share prices slump in Prague that financial impact on shaky economy, and lead to investors suddenly withdrawn. Why in the Czech republic did not change the main macroeconomic policies, and the market is plummeting? Perhaps because investors know the market potential of vulnerability, but think managers deprivation rate still like "boom". However, once the smell the flavor of the "economic collapse", investors will to fight "survival", because they predict deprivation rate will rise.
4.0 参考文献 Reference
Although it did attach to documents within the husband's custody or control.
Macaura v. Northern Assurance Co Ltd [1925] AC 619
Adams v. Cape Industries plc [1990] Ch 433
Williams v Natural Life [1998] 1 WLR 830
See the frustration expressed by the House of Lords in Cotman v. Brougham [1918] AC 514
Ashbury v. Watson (1885) 30 Ch D 376
Shalfoon v Cheddar Valley [1924] NZLR 561
§141(a), Delaware General Corporation Law
See also, Listing Rule 10 for public companies, setting out a scale of transactions requiring shareholder approval and disclosure.
Shareholders must approve sale of "all or substantially all assets", held in Gimbel (1974) to be those "qualitatively vital to the existence and purprose" of the corporation; which in Katz v. Bregman (1981) was held to include assets under 50% of the company's value
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