论上市公司双层股权架构的兴利除弊

To Maximize the Benefit and to Minimize the Cost of the Dual-Class Structure of Listed Companies

一股一票的股东平等原则是公司良治的核心特征。而同股不同票的双层股权架构有悖于股东平等原则。从域外实证经验看,双重架构具有由盛转衰的生命周期,在IPO初期利大于弊,但逐渐弊大于利,最终有弊无利。双层架构公司的平均估值在IPO之初略高于单层架构公司,但溢价优势会逐渐枯竭。部分法域对双重架构的包容既源于经济效率考量,也迫于逐底竞争压力。我国不应东施效颦、亦步亦趋,而应审慎权衡利弊,采取原则禁止、例外允许、严格筛查、严格规制、兴利除弊、限期退出的立法政策。双层股权架构仅是特定上市公司在特定期限内采取的例外规则,而不应成为全体上市公司的常态化模式。立法者既要有条件、有限度地允许科技创新公司理性选择双层股权架构,也要规定双重架构公司自IPO之日起存续期间不超过7年的日落条款,并严格规制创始股东滥用控制权的失信违约侵权行为。建议压缩超级表决权适用范围,关乎公众股东重大核心利益的股东大会决策事项一概回归一股一票原则。

The one-share-one-vote principle,the core feature of good corporate governance,secures the equality of shareholders,but the dual-class share structure characterized by the same share with different votes upsets such equality.As proved by the international experience,the dual share structure often goes through a life cycle from prosperity to decline,in which at the early years after the IPO,the advantages outweigh the disadvantages,but gradually the latter prevail and the former eventually die out.The average stock valuation of a dual-class company is slightly higher than that of single-class company in the early years after the IPO,but the premium advantage will gradually disappear.The tolerance of dual structures in some jurisdictions stems from both economic efficiency consideration and the pressure of the race to the bottom.Therefore,China should not follow blindly,but should carefully weigh the pros and cons,and adopt a legislative policy that prohibits dual class share structure in principle,but allows exceptions,strictly examines and regulates such a structure,uses its advantages and avoids its disadvantages,and mandates sunset provisions.The dual-class share structure shall only be an exceptional rule adopted by a particular listed company within a certain period,and should not become a regular model for all listed companies.Legislation should on one hand provide room for the tech innovation companies to rationally choose a dual-class share structure,but on the other hand shall stipulate a sunset provision that allows 7 years of duration for dual-class companies after the IPO,and strictly regulate the abuse of control power exercised by founding shareholders that violates their fiduciary duty.In addition,it is recommended that the exercise of the super voting rights shall be restricted to certain matters,and that the decision that concerns the core interests of public shareholders at the general meeting shall be made according to the one-share-one-vote principle.