Li Yang, Vice-President of Overseas Chinese Town (Asia) Holdings Ltd, looks at the governance implications of China's mixed-ownership reform drive.

Mixed-ownership reform - the attempt to encourage a more diversified ownership of China's state-owned enterprises (SOEs) - is a key feature of the current round of reforms for China's SOEs. With the support of national and local policy measures, the implementation of mixed-ownership reform has been generally smooth, but the results are yet to be seen. In 2016, total operating income and profits of all SOEs had a year-on-year growth of 2.6% and 1.7% respectively, while total tax paid reduced by 0.7% over the year before. Year-on-year growth in non-governmental fixed assets investment was 3.2%, representing a decline of about seven percentage points. The low effectiveness of SOEs and the lack of strength of non-governmental investment show that mixed-ownership reform has not so far been effective in invigorating SOEs and attracting social capital, because the emphasis has been on reforming ownership structures rather than building the governance structures and capabilities needed. The ownership dispute of China Vanke Co Ltd, that started in the second half of 2015 was essentially a conflict between the modern governance structure of 'supervision by owners and governing by managers' and the classical governance mechanism of 'control by major shareholders'. The incident is significant in that it reveals the many uncertainties and difficulties in the process of mixed-ownership reform. The governance structure of the company formed over the years, under which 'the major shareholders supervise but do not operate and the managers govern but do not control', effectively stimulated the entrepreneurship of the management and achieved for all shareholders a return much higher than the market average, making it a widely recognised model in its sector. The roles of the key parties in corporate governance, namely the major shareholder (that is the SOE), independent directors and the management, were highlighted by this incident and became a subject of debate. The fundamental objective of the reform of SOEs is to remove structural obstructions to the development of the enterprises. A possible way to achieve this objective is to pursue mixed-ownership reform, but the success of mixed-ownership reform relies on the establishment of a modern governance structure of 'supervision by owners and governing by managers'. To reform the governance structure, the powers, responsibilities and inter-relationship between the various parties in corporate governance must first be clearly defined. Only by taking this step-by-step approach can the reform objective be achieved.

Highly diversified ownership structure is characteristic of modern governance

Currently, major shareholders hold 39.5%, 43.7% and 48.9% of the share capital of state controlled A-share, H-share and red chip listed companies respectively. In comparison, the largest shareholders of the constituent stocks of the Dow Jones Industrial Average account for only 7% of the shareholding of the companies on average. This dominance of the major shareholder is contrary to the intention of mixed-ownership reform and is against the global trend of development in corporate governance. The situation should be changed through mixed-ownership reform in the following aspects. 1. The proportion of mixed ownership should be refined. Priority should be given to social capital, in particular non-governmental capital and foreign capital, to complement state capital. The cross ownership between SOEs should focus on whether governing efficiency could be promoted after the mix. In particular, in those enterprises categorised as 'Commercial I Class', state-ownership can be reduced to below 50% or 30%, and control by non-state-owned capital should be allowed. 2. Restrict trading of shares by major shareholders. Trading of shares by major shareholders should be restricted. The threshold and cost of trading should be raised through more stringent information disclosure requirements, extended completion time, and restricting the volume per transaction and cumulative volume of transactions. The incentive for major shareholders to control the companies should be reduced by strengthening the vote-abstention system of connected shareholders, setting up different shareholding classes and introducing differential voting rights. Shareholding distribution of a listed company can be improved through regulatory means, such as by reducing the shareholding ratio of financial institutional investors and levying estate duty. 3. Establish a mechanism for custodians to vote as proxies. To raise the voting rate, custodians should be allowed and encouraged to proactively exercise their voting rights, provided that they have fully explained the motion to shareholders before voting and have not received contrary instructions. 4. Enhance legislative protections. Legislation to protect public and private property rights and minority shareholders should be enhanced so as to give assurance to various parties participating in mixed-ownership reform.

Independence of independent directors assures the effectiveness of corporate governance

With the prevalence of major shareholder control, independent directors in state-owned listed companies account for merely one-third of the number of directors on the board, barely meeting the statutory minimum requirement. Meanwhile, in US companies, this proportion is as high as 66%. The minority of independent directors is a serious mismatch with the majority public shareholders they represent. Furthermore, other procedures and safeguards are not sufficient to ensure the independence of independent directors, making it difficult for them to function properly. It is proposed that attention be paid to the following aspects during mixed-ownership reforms. 1. Refine the selection and appointment system. The existing requirements of 'at least one-third of the members of the board of directors of a listed company should be independent directors' and 'shareholders who individually or jointly hold 1% or more of the issued share capital of a listed company can nominate an independent director' should be amended to require the proportion of independent directors to be not less than 50%, or not less than the proportion of public shareholding. The right to nominate independent directors should be conferred on a nomination committee made up of a majority of independent directors, or on minority shareholders who elect independent directors through classified voting arrangements. Other possible reform measures include reducing the shareholding requirement for shareholders qualified to nominate an independent director, restricting the number of independent directors that a controlling shareholder can nominate, establishing a system of convener of independent directors, and refining the closed-door meeting mechanism of independent directors. 2. Improve the remuneration system. It is suggested that the standard of remuneration of independent directors across the market be determined by a national self-regulatory organisation (for example the China Association for Public Companies). The remuneration package for independent directors of individual companies should be determined by the remuneration committee of the company and paid out of the membership fees paid by listed companies to the self-regulatory organisation. 3. Safeguard independent directors' performance of duties. The exercise of independent directors' functions should be safeguarded through the establishment and improvement of detailed information disclosure requirements, immunity from prosecution, investigation of interference with voting by independent directors, etc. Independent directors should be encouraged to disclose matters that would harm the interests of minority shareholders and to express independent views without fear.

Reforming the supervisory board system

Redefining the functions of the board of supervisors is necessary in line with governance trends. The system of the board of supervisors had its origin in the two-tier governance structure of German companies. The original intention was to put in place effective supervision of the board of directors and the managers and protect the interests of all shareholders. In practice, however, the board of supervisors, like the board of directors, is basically controlled by the major shareholder, and there are many overlaps in its functions with those of the independent directors. Its position is getting less clear. Stakeholders of modern enterprises have expanded from only shareholders to include employees, community, clients, working partners, creditors and so on. With the development of mixed-ownership reform, it is proposed that the composition of the board of supervisors be redefined to establish a new system of board of supervisors oriented towards the needs of stakeholders so as to fulfil a unique supervisory role to serve the interests of both the enterprise and the community.

Reforming the professional manager system

The professional manager system is core to the smooth operation of corporate governance mechanisms. The practice of modern corporate governance is based upon the principal-agent theory. The governance structure of 'supervision by owners and governing by managers' typical of large US listed companies is superior to the structure of 'control by major shareholders'. It can effectively reduce information asymmetry and reduce agency cost. 'Governing by managers' has to be supported by a large team of professional managers. Only with this support can the agency relationship between the owner and the operator be clearly defined. Over the years, the dysfunction of the professional manager system has been the crucial reason for many deep-rooted problems in the corporate governance of SOEs, and should be a core problem to be resolved in this round of mixed-ownership reform. 1. Establish a system to select and appoint professional managers suitable for mixed ownership. The board of mixed-ownership enterprises should select and appoint managers by the rules of the market, fully drawing reference from the successful experience and rigorous criteria of the party-managing-cadres mechanism. A market-oriented assessment and evaluation system should be adopted, and the source of talent and room for development of talent should be expanded. A modern culture of professional managers should be built, promoting the interchangeability of roles and results orientation. 2. Establish a market-oriented incentive and restraint system. A remuneration system that differentiates managers by their performance should be set up, and long-term incentives should be actively explored, such as employee stock ownership plans, project co-investment schemes, stock incentives, increasing shareholdings in the secondary market, etc. A partnership system should be established to bundle the personal objectives of managers with the common interests of the entire body of shareholders. 3. Enhance external supervision. A credibility record system of managers, a lifelong system of accountability where necessary, and a class action and derivative action system for shareholders should be set up. This is to strengthen external monitoring to prevent governing by managers from developing into insider control. 4. The roles and functions of the board secretary should be redefined. With the development of mixed-ownership reform, corporate governance is moving from the shareholder-centric mode to a mode that caters to the interests of diverse stakeholders. As the pivot of corporate governance, board secretaries are facing great changes in the working environment and an ever-rising expectation of performance. With a more diversified shareholding structure, it will be necessary to grasp the core concern of different groups of shareholders and ensure adequate communication and reporting. The governance structure should be reviewed from time to time, effective communication among the shareholders, directors, supervisors and managers should be maintained, and reforms in management culture should be pursued as necessary. In the context of diverse stakeholders, board secretaries should be familiar with their different languages and communication channels, and enhance their communication skills and ability to handle contingencies. In face of hostile takeovers, board secretaries should consolidate their knowledge of policies and rules, keep abreast of market changes and public opinion, assist the board and the management to work in compliance with laws and regulations, and uphold the overall interests of all shareholders. The author sincerely thanks Professor Oliver Hart and Professor Hua Sheng for their research and views referenced in this article. Li Yang, Vice-President Overseas Chinese Town (Asia) Holdings Ltd

在国企混合所有制改革背景下，华侨城（亚洲）控股有限公司副总裁李洋检视公司治理的若干问题。

中国内地的混合所有制改革，鼓励国企分散股权，是当前新一轮国企改革的显著特征和重要突破口。近年来，在中央和地方一系列政策措施支持下，混改进展总体顺利，但效果还有待观察。数据显示，2016年全国国有企业营业总收入同比增长2.6%，利润同比增长1.7%，上缴税金同比下降0.7%，民间固定资产投资同比增长3.2%，增速下滑约7个百分点。国企效益低位徘徊，民间投资乏力，反映出混改在激发国企活力、调动社会资本方面的成效不显著。究其原因，在于重混轻改，即重视股权混合，忽视了混合所有制下的公司治理结构和能力的建设。 始于2015年下半年的万科股权之争，本质上是“所有者监督、经理层支配”的现代企业治理机制与“大股东控制”的古典企业治理机制之争。事件折射出混改进程中的诸多困惑和困难，具有重要启示意义。万科多年来形成的“大股东监督不经营，经理层支配不控制”的治理结构，有效释放了经理层的企业家精神，为全体股东创造了远胜于市场均值的高额回报，被公认为业界标杆。在这次事件中，国有大股东、独立董事、经理层等公司治理主体扮演的角色和发挥的作用广受关注和争论。 国企改革的根本目的是破除束缚企业发展的体制机制桎梏，实现这一目标的突破口和可行路径在于混改，混改的有效落地必须以建立“所有者监督, 经理层支配”的现代公司治理结构为主要抓手，而治理机制的变革，则需首先理顺治理主体的权责定位和相互关系，唯此才能层层阶进达至改革目标。

高度分散的股权结构是现代公司治理的产权基础

据统计，目前A股、H股和红筹股中，国有控股上市公司第一大股东持股比例平均数分别为39.5%、43.7%和48.9%，这一比例在道琼斯工业平均指数成分股中仅为7 %。一股独大导致的大股东控制，既非混改初衷，也不符合全球公司治理的发展趋势。因此，要通过混改，从如下方面改变这一局面。 1. 优化混合股权比例。优先选择与国有资本优势互补的社会资本，尤其是民营资本和境外资本开展股权合作。对国有资本相互之间的混合来说，应重点关注混改后的治理效率能否得到切实提升。尤其是对于商业一类企业，可将国有股权比例降低至50%或30%以下，条件允 许可由非国有资本控股。 2. 限制大股东股份交易。通过提高信息披露要求、延长交割时间、压缩单次和累计交易数量等方式，提高交易门槛和成本。通过强化关联股东回避表决制度，建立股权分级和差别投票制度等方式，削弱大股东控制意愿。还可以通过提高金融机构股权投资分散度、征收遗产税等制度安排，强制分散股权。 3. 建立证券托管机构代理投票机制。允许和鼓励证券托管机构在投票前充分向股东说明情况且没有收到反对指示的前提下，主动行使投票权，提升投票率。 4. 加强立法保障。加强保护公私产权和中小股东方面的立法，为各类资本参与混改派发定心丸。

独立董事的独立性是公司治理有效性的关键保证

在大股东控制广泛存在的背景下，我国国有控股上市公司独董占董事会成员比例平均数，据统计仅达到1/3这一法律规定的最低限，而美股公司该比例高达66%。独董的少数与所代表公众股东的多数严重倒挂，加之其它程序性和保障性制度不健全，独董的独立性无法保证，职责难以发挥。建议在混改过程中，重点关注如下方面： 1. 完善选任制度。修改“上市公司董事会成员中应至少包括1/3独立董事”、“单独或合并持有上市公司已发行股份1%以上的股东可提名独董”等现行规定，要求独董比例不少于50%或不低于公众股东持股比例，并将提名权交给独董占多数的提名委员会，或将提名权交给中小股东，以分类表决方式选举产生。可选的改进措施还包括降低提名权所需持股比例、限制控股股东提名独董数量、建立独董召集人制度、完善独董闭门会议机制等。 2. 改进薪酬机制。可考虑由全国性行业自律组织（如上市公司协会）统一制定全市场范围内的独董薪酬标准，董事会薪酬委员会制定本公司独董薪酬方案，再由自律组织从上市公司缴纳的会费中发放。 3. 加强独董履职保护。 建立和完善独董信息披露细则、豁免起诉制度、干预独董投票追责制度等，加强独董履职保护，鼓励独董对损害中小股东利益的事项进行披露并发表独立意见，而无后顾之忧。

改革监事会制度

重新定位监事会职能是顺应公司治理发展趋势的必要选择。我国的监事会制度源于德国企业的双层治理结构，初衷是对董事会和经理层进行有效监督，维护全体股东利益。但在实践中，监事会和董事会一样，基本受控于大股东，并且与独董在职责方面多有重叠，定位愈发模糊。 现代企业发展中需要面对和顾及的利益主体已经从单纯的股东，扩大到员工、社区、客户、合作伙伴、债权人等多个利益相关方。伴随混改的深入，建议重新界定监事会成员构成，建立利益相关方主导的新型监事会制度，发挥独特的监督作用，促进企业利益与社会利益协同发展。

改革职业经理人制度

职业经理人制度是公司治理机制协调运行的核心环节。现代公司治理实践建立在委托代理理论基础之上。以美国大型上市公司为代表的“所有者监督、经理层支配”治理模式，优于“大股东控制”的模式，可有效减少信息不对称，降低代理成本。经理层支配需要专业且庞大的职业经理人队伍为支撑，才能清晰所有者和经营者之间的委托代理关系。多年来，职业经理人制度的不完善，是国企治理诸多深层矛盾的重要原因，也是这一轮混改应重点解决的核心问题。 1. 建立适应混合所有制的职业经理人选用制度 。 混合所有制企业的董事会，应充分借鉴党管干部的成功经验和严苛标准，按市场规则选聘经理人，完善市场化考核评价机制，扩宽人才获取渠道和发展空间。积极建设现代职业经理人文化，鼓励身份转换，推崇业绩导向。 2. 建立市场化激励约束机制。制定差异化薪酬制度，积极探索员工持股、项目跟投、股权激励、二级市场增持等长效机制，建立事业合伙人制度，将经理层的“私心”与全体股东的“公利”紧密结合。 3. 强化外部监督。建立健全经理人信用声誉档案制度、必要的终身追责制度、股东集体诉讼和派生诉讼制度等，强化外部监督，防控经理层支配演变为内部人控制。 4. 重新定位董秘职责。随着混改不断深化，公司治理正在从以股东为中心的“一元化”学说向利益相关者兼顾的“多元化”学说演进，董秘作为治理机制的枢纽，事业环境正发生深刻变化，履职能力标准不断提高。面对高度分散的股权结构，要充分了解不同类别股东的核心关切，做好沟通汇报。面对治理结构变革，应经常检视治理机制，维护“叁会一层”协调运转，推进管理文化变革。面对多元利益相关者，要熟悉不同话语体系，提升沟通技巧和突发事件应对能力。面对敌意收购，要加强政策规则学习，时刻关注市场变化和舆论方向，协助董事会和经理层合法合规开展工作，维护全体股东的整体利益。 （本文部分内容参考了奥利弗·哈特、华生等专家学者的研究成果和观点，在此诚挚致谢。） 李洋 华侨城（亚洲）控股有限公司副总裁