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Application of Employee Stock Ownership Regulations in Private Enterprises

编辑: 毕业论文 Release time: 2017-12-26 Editor: Graduation Thesis
The article is an economic law thesis, mainly on the current legal analysis of employee shareholding in private enterprises and the application of new regulations. This article is selected from: "Contemporary Law", "Contemporary Law" promotes the spirit of rule of law, promotes the progress of social legal system, pays attention to social hot issues, and gathers academic fine works, including constitution, administrative law, economic law, civil and commercial law, criminal law, procedural law, international law, Legal experts and law researchers in environmental law, military law and other departmental laws set up academic research platforms, provide a window for academic exchanges at home and abroad, and distinguish high-level legal research talents.

The article is an economic law thesis, mainly on the current legal analysis of employee shareholding in private enterprises and the application of new regulations. This article is selected from: "Contemporary Law", "Contemporary Law" promotes the spirit of rule of law, promotes the progress of social legal system, pays attention to social hot issues, and gathers academic fine works, including constitution, administrative law, economic law, civil and commercial law, criminal law, litigation law, international law, Legal experts and law researchers in environmental law, military law and other departmental laws set up academic research platforms, provide a window for academic exchanges at home and abroad, and distinguish high-level legal research talents.

Abstract: As some related provisions of the laws and regulations on employee shareholding issued by the state are often contradictory, in terms of specific operations, due to non-standard regulations, the flexibility of operation is relatively large, coupled with the complex property rights relations of Chinese enterprises, different enterprises vary widely. This directly leads to the difficulty in having a unified and standardized operation method that can be followed. As long as the government's approval is available, any way is possible.

Keywords: private enterprises, economic law, application of law, economic law papers

I. History of employee shareholding

The Employee Stock Ownership Plan, also known as the Employee Stock Ownership Plant, originated in the United States in the mid and late 1950s and was first advocated by the attorney Louis Kelso. Since the 19th and 20th centuries, the contribution of labor to output has gradually decreased, and the role of capital has increased. As a result of the large amount of capital held in the hands of a small number of people, the inequity in social distribution has become increasingly apparent. Against this background, Kelso proposed that everyone should simultaneously pass It is a basic human right to obtain income from labor and capital. In the face of the lack of sufficient funds for most workers, a financing technique must be designed so that as many people as possible have assets, and employee stock ownership plans have thus been generated [1] [2].

In the mid-to-late 1950s, within 8 years, Mr. Kelso first transferred 72% of a company's equity to employees.In the 1970s, Congress granted legal approval and then rapidly developed. Countries have followed suit. Today, the number of U.S. employees participating in the employee shareholding program reaches 12 million, accounting for 10% of all workers, and its assets exceed 100 billion U.S. dollars.

The primary cooperatives that started in agriculture in the early days of liberation in China, and the supply and marketing cooperatives that started in cities have all shown the embryonic form of employee shareholding, but were gradually banned after the 1960s and 1970s. After the 15th National Congress of the Communist Party of China, all localities are working hard to invigorate the state-owned economy and the collective economy. Starting from the definition of investment entities and implementation of property rights responsibilities, in accordance with the requirements of modern enterprise systems, flexible and effective reforms are adopted. And the recognition of enterprises has become a common method of property rights reform.

Great progress has been made in employee shareholdings across the country, and corresponding management regulations have been formulated, such as the "Trial Measures on the Establishment of Employee Shareholders' Meetings by Companies," "Interim Provisions on the Pilot Provisions on Internal Employee Shareholders," etc. A proven approach. However, due to the different considerations of local governments, the level of development in employee shareholding is also uneven.

At present, according to the author's understanding, there are four main forms of employee shareholding:

1. Employee stock ownership plan

The company's internal employees subscribe for the company's stock, entrust a special employee stock-holding association to manage and operate, and employees receive dividends by owning equity. It is essentially an employee benefit plan. This article will focus on analyzing employee stock ownership.

2. Management financing acquisition

The management or manager of the company uses the loan financing to purchase the company's shares, changing the company's asset structure and ownership structure, so as to achieve the purpose of restructuring the company. It is essentially an incentive system arrangement.

3. Operator stock options

It gives senior managers and senior technicians a choice to buy the company's stock at a specified price within a specified time. It is a system arrangement that has more significant incentive and restraint effects than the operator's holding of shares.

4. Staff operator joint financing acquisition

It is the combination of management financing acquisition and employee shareholding, that is, the employees and managers of the original enterprise jointly invest to buy the company, thereby changing the ownership structure of the company.

Second, the traditional definition and characteristics of employee stock ownership

The employee stock ownership plan in the United States can actually be considered one of its many benefits plans. Because an employee stock ownership plan does not guarantee employees a fixed income or benefit package (which is exactly the gist of a typical benefit plan), but instead associates the employee's income with their investment in the company's own stock, so it is actually Link employee benefits with corporate effectiveness, corporate management, and employee efforts and contributions. According to the practice in the United States, for employees who have reached the age of 21 and have served for more than one year, a certain percentage of the company's total annual salary is deposited into the employee stock trust fund, and it is fair to use part of the fund to deposit. The stocks of service companies are purchased at market prices, and the companies allocate the stocks to each employee's special stock account each year after the deposit is paid for the stock price. During this period, if the employee wants to sell the stocks obtained, the business owner has the right of first option. When the employee retires or leaves the company, the company must deliver the stock to the employee [3].

At present, there is no unified law in China that clearly defines the legal act of employee shareholding. Only the "Management of Workers' Shareholders' Associations (Trial)" or "Trial (Interim) Measures for Internal Employees' Shareholding" promulgated in various regions (17 provinces and cities). Respectively. As some regulations around:

1. Internal employee shareholding refers to a new type of public-owned property rights organization form in which the internal employee of the company personally subscribes for part of the company's shares and entrusts the company's labor union to hold centralized management. [4]

2. Internal employee stocks refer to specific shares established in accordance with the provisions of these Measures, which are voluntarily contributed by the company's employees, and are uniformly managed by the company's employee stock holding associations [5].

3. The internal employee shareholding of the company refers to a new type of property right organization form in which the employees of the company personally subscribe for part of the company's shares, directly held by employees or organized by the employee shareholding associations [6].

4. The company's internal employee shareholding system refers to a new type of shareholding in the company in which the company's internal employees contribute funds to subscribe for shares in the company, entrust the union to operate as a corporate legal person, and enter into the board of directors on behalf of employees individually.

5. The internal employee shareholding system refers to a new type of shareholding in which employees within a company subscribe for shares of the company voluntarily. The employee shareholding organization organized by the union serves as a corporate legal person. The shareholding association represents the employee's individual shares on the board of directors and participates in dividend sharing.

According to the documents issued by the various local governments mentioned above, we can consider that employee shareholding is a new type of equity distribution.The company's internal staff entrusts the employee shareholding association (or a third party such as a financial trust institution) to subscribe for the company. Part or all of the equity, and the custody operation of these equity, centralized management. Therefore, the employee stock ownership plan has the following legal characteristics:

(1) There are certain restrictions on the subject bank-that is, the shareholders or subscribers must be employees who have labor relations in the enterprise;

2) There are certain restrictions on the rights of the object-the shares subscribed by employees cannot generally be transferred, traded and inherited (if there is an agreement);

(3) In the method of benefit distribution-employee shares can only participate in the company's profit sharing with a secondary profit distribution;

(4) In terms of sources of funds-it can be achieved through various methods such as cash subscription, special loans, transfer of public welfare funds, and rewards.

However, I personally believe that according to China's relevant laws and policies, there are still many conflicts of legal attributes and incompleteness and lack of provisions in the existing legal system in the shareholding of state-owned enterprises and private enterprises in China, and the current laws and regulations are all The state-owned enterprise or state-holding enterprise employee shareholding has been regulated, but since the employee-owned shares of private enterprises are not regulated. The most critical reason is that the existing laws on employee shareholding are based on the perspective of state-owned property rights distribution and employee participation, and the most typical problem of private enterprises is that all property rights belong to private ownership. Therefore, many private enterprises are unable to rely on employee stock ownership and engage in unauthorized activities, which has also led to the failure of many real cases. This article will use the legal analysis of related cases to point out the deficiencies in China's relevant laws and regulations, and put forward the author's relevant suggestions for improvement.

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