On The Listed Companies In The Solicitation, Legal Regulation

Since the occurrence of "Jim Wan Contest" in 1994, there have been several proxy solicitations in our securities market, including the famous "shengli control contest" at the beginning of 2000. In contrast to aforementioned innovations in securities market, our legislation relatively lay behind for the vacancy in the national level legislation. Proxy solicitations have a so called double-edged sword effect. Proper rules and regulations can promote their positive effects to perfect the corporate governance. However, if left unregulated, proxy solicitations will be used either by corporation management to sustain their control over the corporations, or by insurgent shareholders to disturb the corporations' ordinary management. Whether proxies are solicited by corporate management or by insurgent shareholders, there will be information dissymmetry between solicitors and the shareholders whose proxies are solicited. The inequality also exists between the board of the corporations and the insurgent shareholders, although they are both solicitors. The main point in the regulation of proxy solicitations is the setting up of the rules balancing the parties' interests in the proxy solicitations. In this respect, U. S., where the proxy solicitations prevail, has relatively sophisticated legislation and highly effective practices of supervision, the experiences from which have been learned by the legislation of Japan and Taiwan Region. Mainly using the methods of comparative study and case study, the author makes great efforts to explore how to regulate proxy solicitations to perfect corporate governance with the focus on the U. S. regulations. Taking into consideration the practices in our securities market, the author tries to give some suggestions for our legislation.Besides the preface and the conclusion, the dissertation is divided into four chapters.Chapter I tries to construct basic theoretical framework for this dissertation. It explores the functions of proxy solicitation in corporate governance, and compares the proxy solicitations under the different corporate governance in U. S., Germany, Japan and Taiwan District and the related regulations. Considering the characteristics of the proxy solicitations and corporate governance in our securities markets, the author bring forward the legislative mode our country should follow and the basic structure, laying the foundations for the following chapters which focus on the U. S. rules and the detailed regulations.Chapter II inquires the practices of U. S. federal securities law in defining theproxy solicitation. All the concerns is mainly on the 1992 amendment to the proxy rules by the U. S. Securities and Exchange Commission, which changes long held broad definition of "proxy solicitation". Analyzing the social and economic background for the "proper shrinkage" in defining "proxy solicitation", the author interprets the conversion of legislative policies underpinning this phenomenon and gives some advice for our legislation.Chapter III illustrates how the U. S. federal securities law regulates the proxy solicitation. Information disclosure system is the main tool used by the U. S. federal securities law to regulate proxy solicitation. The author firstly examines the basic disclosure structure of the proxy rules under the U. S. federal securities law, and makes comparison between the anti-misrepresentation clause rule 14a-9 under the proxy rules and the anti-fraud clause rule 10b-5 which applies to the misrepresentation in securities exchanges. Then the author investigates the two differential issues of the civil liability for the misrepresentation in proxy solicitations. One is the application of the "qualitative stand" in determining the materiality of misrepresentation. Another issue is the use of the "essential link" in deciding the loss causation of misrepresentation. At the end of this chapter, quoting the U. S. federal securities regulating experiences of proxy solicitations, the author proposes some solutions for our legislation.Chapter I...