| The corresponding legal document for securities regulation system of the large shareholding in China is the People's Republic of China's Securities Law amended in 2019(hereinafter referred to as the new securities law,or this round of securities law).Of course,the relevant systems to regulate large-scale shareholding also include general information disclosure provisions,relevant provisions in the chapter of legal responsibility,etc.According to the provisions of the new securities law,"large shareholding" means that "investors hold,or jointly hold through agreements or certain arrangements,5% of the voting shares issued by a listed company through securities trading on the stock exchange".At the same time,the Administrative Measures for the Acquisition of Listed Companies(hereinafter referred to as the "acquisition measures")stipulates the obligations to be performed by large shareholding of 5% or more by other means.In short,large holdings describe holding 5% through the secondary market and 5% or more through other means.End of 2014,this round of hostile takeover and insurace funds' "card raising" for listed companies raised the public's high attention,one of major problems among which was the securities regulation system of large shareholding.As a result of shortsightedness,investors' purchase of large amount of shares is often regarded as hostile purchase and is disgusted and criticized by listed companies and even scholars and regulators.Therefore,the call to tighten the disclosure rules of large amount of shares has become a hot topic in academia and public opinion,which is reflected in the revision of the securities law.However,there is no theoretical and practical consensus on the function,advantages and disadvantages of the supervision system of large amount of shares and its supervision position.The main body,time limit and content of the supervision system of large amount of shares are designed.The application of the slow-moving rule in China and the relationship with the relevant information disclosure system still need to be studied systematically and analyzed in depth.This article is in reference on the basis of is making effort to do a systematical study of legal logic,regulation subjects,disclosure timing,disclosure content,slow-moving rules and legal liability of the securities regulation of large holdings on the basis of existing research results,,combined with the author securities regulatory practice experience and thinking,in order to provide some support for the theoretical research and law enforcement practice.The large shareholding originated from the Williams act of 1968 in the United States.After that,the capital markets of major countries in the world have drawn lessons from and developed,forming their own regulatory system of large shareholding.In addition to the rights and interests disclosure system,the regulatory system of large shareholding in China has also developed the transaction restriction rules closely related to the rights and interests disclosure,which is commonly known as the "slow down rule".The research object of this paper is the regulatory system of large amount shareholding stipulated in the securities law,including the disclosure system of large amount shareholding rights and interests,and the "slow moving rule".This paper will call both the regulatory system of large amount shareholding.As a related system,the acquisition of listed companies and the system of tender offer are involved in this paper,but not the system that this paper will focus on.The Securities Act,as amended in 2019,was issued and entered into force on March 1,2020.The new "Securities Law" has revised the supervision system of large holding,mainly including disclosure time and legal liability.However,why is such a system modification reasonable? Before the amendment of the law,was the dispute over the supervision of large shareholding settled due to the dust of this amendment? How to deal with the unresolved disputes in the future law enforcement and judicial practice? How to interpret and implement the new rules in order to achieve the legislative and regulatory objectives? In order to answer these questions,it is necessary to carry out a comprehensive analysis of the supervision system of large holding..This paper includes five chapters.The first chapter analyzes the legal principle and logic of supervision of large shareholding securities.It includes four aspects: first,the basic structure of large-amount shareholding supervision,the connotation and extension of large-amount shareholding,and the position of large-amount shareholding supervision in the acquisition supervision of listed companies.Second,it analyzes the origin and flow of the thought of large-amount shareholding supervision.The intrinsic nature of the securities market determines that the way of its function is related to securities trading,especially large-amount securities trading.The inherent defects of the securities market determine the inevitability of securities supervision.Large-amount shareholding supervision is one of the important contents of securities supervision and has its unique value of rights and interests disclosure.Third,the institutional value of supervision of large shareholding,namely the necessity of supervision of large shareholding,mainly includes three aspects: protection of investors' rights and interests,corporate governance and market order.Fourth,analyze the conflict balance of large shareholding supervision.The principle of large shareholding supervision is moderation;The method key lies in systematization;And avoid the regulatory trap of excessive disclosure.The second chapter analyzes the supervision object of the large holding supervision system.From the perspective of information disclosure supervision,the supervision objects are generally people who have internal information.However,the regulatory object of the disclosure of large shareholding rights and interests is not the listed company or its board of directors and other insiders,but the large shareholder(defined as "equity owner" in this paper)is the subject of obligations and responsibilities.This chapter analyzes the terms appearing in the history of the supervision system of large amount of shares,such as investors,shareholders,share holders,share controllers,persons acting in concert,information disclosure obligors,etc.,points out the origin,causes,concepts and elements of the concept of equity owners,so as to clearly define the supervision objects of the large amount of shares system,and defines the special rights and interests on this basis The criteria for the identification of the owner and his ownership interest.In the third chapter,the large amount of shares is regarded as a state,and the supervision of information disclosure is studied.That is to say,as long as the shareholding reaches the legal proportion,even if no other behavior is done,information disclosure should also be carried out.According to the theory of securities regulation,the key problem of information disclosure regulation is: what to disclose and when to disclose.This is the two most critical issues in information disclosure.About the content,the disclosure of changes in equity in China is not a simple and detailed form only based on the shareholding ratio,as some opinions think,but a set of distinguishing logic mainly based on the shareholding ratio and supplemented by the control right.Although there are some problems in this logic,it is basically in line with the actual situation in China.Compared with the rules of mature market,the main problem of the content of equity change report is that there is no exemption from disclosure and simplified disclosure.In this paper,it is suggested to make relevant exemption or simplified disclosure rules in the future by referring to the practice of overseas market and combining with the regulatory status of institutional investors in China.With regard to time limits,the ratio of the initial information disclosure of large shareholding is set at 5% because 5% of shareholders are important shareholders of the company and 5% exist in many systems in the Company Law and the Securities Law.Secondly,the Securities Law modificates the ratio of continuous information disclosure from 5% to 1%.There is a big dispute about this modification,and no consensus has been reached in the theory and practice fields.The reason for the final modification is that it is still a response to many previous hostile takeovers.Under the circumstance that the anti-takeover measures of listed companies are limited,the interests are balanced to a certain extent in order to prevent hostile takeovers.Futhermore,it is appropriate for the change proportion of 1%,5% to take "calibration theory",which means the multiple of is 1% or5%.On the one hand,multiples of 5%,such as 10%,30%,50% and 75%,are of great significance for the company law,and disclosure at this time is more in line with the interests of investors.On the other hand,a multiple of 1% could reduce the difficulty for equity owners to understand the rules,reducting the illegal behaviors to some extent,and reduce the regulation cost of the regulation authorities.Finally,the timing limit design of large-amount shareholding information in China is not as same as that in the United States which is relevant to the shareholding subject and the shareholding purpose.As for the purpose of holding shares,given that the subjective intention is difficult to be defined,the author considers that the timing limit of information disclosure is consistent with the current situation.As for the shareholding entities,the timing limit of disclosure for some entities can be appropriately released in the future according to the authorization of the Securities Law and the development of institutional investors.In the fourth chapter,the large holding is defined as a kind of behavior,and its trading behavior is supervised.In China,the supervision of large holding includes not only the supervision of information disclosure of holding status,but also the restriction of trading behavior of shareholders after large holding.That is to say,the supervision system of large-scale shareholding in China is not only the information disclosure system,but also the restriction system of no trading within a certain period of time.This is the biggest difference between China's large-scale shareholding supervision system and the major mature capital market's large-scale shareholding supervision system.In fact,there are three types of restrictions on large share trading: the first is the short-term trading of more than 5% of shareholders;the second is the reduction of new shares for more than 5% of shareholders and directors,supervisors and other high-level entities after the abnormal fluctuation of the stock market in 2015.Although these two kinds of problems also belong to the trading restrictions of large amount of shares,the short-term trading and resale rules are not the research object of this paper.The research object of this paper is mainly the third category,which is the slow moving rule stipulated in Article 63 of the securities law.At the beginning of its formulation,the slow-moving rule was charged with the mission of protecting fairness of information disclosure and preventing from market manipulation.However,with the rapid spread of information,the confrontation between advantages and disadvantages of the slow-moving rules is altering.At present,this system is still reseved in order to maintain market's order and prevent from hostile takeover.However,it is necessary to consider the superposition effect of the disclosure system for the new shareholders of 5% or more which require them to report per 1% change on the next-day and the slow-moving rule.Choosing one of the two systems could achieve the corresponding legislative goal,considering the superposition of the systems will lead to more prominent negative effects of the slow-moving rule,which will hinder the formation of the market for the acquisition of control rights of listed companies and is not beneficial to corporate governance in the long run.The fifth chapter mainly analyzes the realization of violating the supervision system of large shareholding.The mechanism of legal function determines that only when there is responsibility can there be real rights.The nature and legal liability of securities trading behavior(hereinafter referred to as "illegal trading behavior")in violation of the rules of rights and interests disclosure and slow walking.First,as to the nature of the act,the illegal act of rights and interests disclosure belongs to false statement,but the subsequent illegal transaction does not apply to the relevant rules of insider trading.Although the large amount of shareholding information is insider information,illegal trading behavior is covered in the case of "other provisions,applicable provisions" mentioned in article 53,paragraph 2,of the Securities Law,and shall not be subject to the legal liability of insider trading;.The legal liability for illegal trading behavior shall be dealt as the false statement.Secondly,administrative responsibility is the main form of liability that can regulate illegal trading behavior.The false statement that can be investigated for civil liability is usually called as "induced multi-type false statement",while the illegal trading behavior is generally seen as "induced short-type false statement",which is difficult to investigate civil liability.However,there is still a dispute about whether there is criminal liability for illegal trading behavior.Therefore,administrative responsibility is the main way to deter violations.This chapter mainly analyzes and discusses the administrative responsibility of the illegal behavior of large-scale shareholding.For civil liability and criminal liability,it is not the focus of this paper.The main purpose of the brief discussion of civil liability and criminal liability is to analyze the administrative liability in the liability system,so as to systematically recognize the administrative liability and its appropriateness of the supervision of large holding shares.The relevant forms of administrative liability in China include order for correction,warning,fine and restriction on the voting rights.The order for correction refers to the completion of information disclosure obligations,without including restrictions on the voting rightsand being extended out to other forms of liability,such as the order to sell in limited period,and confiscation of illegal income. |
PDF Full Text Request