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10 Stationary Company was a joint stock company incorporated by four natural persons (A, B, C and D) and Fengli Co Ltd, with a total registered capital of RMB 50 million yuan. During the operations of the past three years, Stationary Company gained no profits in the financial years 2008 and 2009. In 2010 Stationary Company gained an after-tax profit of RMB 5 million yuan.
In the beginning of 2011 the board of directors of Stationary Company submitted to the general shareholders’ meeting for approval two resolutions. The proposed resolutions were on the following:
(i) The company would distribute dividends to the shareholders on the basis of 0·10 yuan per share with all its after-tax profit of RMB 5 million yuan for 2010;
(ii) For the purpose of getting financing from the bank, the company was to place a pledge with all the shares of its shareholders to the bank.
Required:
Answer the following questions in accordance with the relevant provisions of the Company Law, and give your reasons for your answer:
(a) state whether proposed resolution (i) on the distribution of dividends was in conformity with the law;
(b) state whether proposed resolution (ii) on placing the shares as a pledge for a loan was in conformity with the law.
答案：
10 This question requires candidates to determine the legality of the resolutions adopted by the board of directors for approval by the general shareholders’ meeting under the Company Law of China.
(a) The resolution of the board of directors on the distribution of dividends was not in conformity with law.
According to Article 167 of the Company Law, when a company distributes the annual after-tax profits, it shall allocate 10% of its profits to its statutory common reserve fund. After a company makes up its losses and makes allocations to the statutory common reserve fund, a limited liability company or a joint stock company may distribute the remaining after-tax profits to its shareholders according to the provisions of this Law or the articles of association.
In this case Stationary Company intended to distribute all its after-tax profit, failing to allocate 10% of the profits to its statutory common reserve fund, and failing to make up its previous loss. Therefore, the resolution was not in conformity with the provisions of the Company Law.
(b) The resolution of the board of directors on placing the shares as a pledge for a loan was not in conformity with law. In accordance with the relevant provisions of the Company Law, shares are the certificates of right held by shareholders when they make their capital contributions to the company according to the articles of association. The company cannot be a holder of the shares it issued and cannot dispose of the shares of its shareholders through a resolution, no matter if there is a resolution of the board of directors or a resolution of the general shareholders’ meeting. Therefore, any company is not allowed to place the shares of its shareholders as a pledge for a loan agreement by a resolution of the general shareholders’ meeting.
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