On Legal Regulation Of Share Repurchase Of Listed Companies In China

Share repurchase of listed companies is a commonly used financial instrument in international capital market,It can not only promote the rational return of stock price,maintain the stability of stock market,but also facilitate the implementation of employee stock ownership and equity incentive plan by listed companies.It also has many important functions such as preventing malicious acquisition and issuing new shares in the era of equity incentive,so as to promote the financial innovation of companies as a basic financial instrument.However,Share repurchase of listed companies also poses challenges to the theory and practice of traditional Company Law.Therefore,in dealing with share repurchase of listed companies,We should promote and encourage listed companies to use stock repurchase tools rationally through the innovation of corporate financial legal system on the basis of keeping the bottom line of no systemic risk.This paper is divided into three parts:introduction,text and conclusion.The main body is divided into five chapters,which respectively demonstrate the basic issues of share repurchase of listed companies and its legal regulation,legislative mode,pre-legal regulation,in-process legal regulation and post-legal regulation.Chapter 1 mainly introduces the basic problems of share repurchase of listed companies and its legal regulation.From the basic characteristics of share repurchase of listed companies and its implementation,it mainly brings challenges to the traditional theory of Company Law in such aspects as confusion and logical confusion between shareholders and the main body of listed companies,endangering the principle of maintaining company capital,endangering the principle of equity equality,and disrupting the fair trading order.The development of modern corporate securities law theory makes these theoretical challenges clear:Share repurchase and share issuance subscription are two completely different legal categories,share repurchase does not necessarily lead to logical confusion in corporate law;If the financial resources of repurchasing shares of listed companies are limited,it will not threaten the integrity of legal capital theory,and will not naturally violate the bottom line of creditor protection.If we provide a set of relatively scientific repurchase mechanism and standardized repurchase procedures,we can also provide a relatively fair trading mechanism for shareholders to achieve fair opportunities in repurchase;In terms of disrupting the fair trading order,we can avoid by improving the prevention mechanism of false repurchase and the regulation mechanism of insider trading and market manipulation and other illegal acts.Chapter 2 mainly introduces the legislative mode of share repurchase of listed companies and the preferred scheme of our country.There are three typical legislative modes for share repurchase of listed companies:"principle allows,exception prohibits","principle prohibits,exception allows" and compromise legislative model.The essence of commercial law of "principle allows,exception prohibits" mode is "limited government,surplus market"mode.The essence of commercial law of the "principle prohibits,exception allows" model is the "limited market,surplus government" model.The compromise legislative model tries to find a balance between market mechanism and government regulation in order to maximize the value of share repurchase system of listed companies.To perfect the legislative mode of share repurchase of listed companies in our country,we should take "principle allows,exception prohibits" as the ultimate goal,and compromise legislative mode as the key goal of the current reform.We can further expand the application of share repurchase of listed companies,establish general purpose repurchase,promote the basic concept of corporate autonomy,and give full play to the value of share repurchase of listed companies.Chapter 3,Chapter 4 and Chapter 5 of the text analyze the specific legal regulation issues from the three stages of share repurchase of listed companies in China:pre-legal regulation,in-process legal regulation and post-legal regulation.Among them,Chapter 3 is the pre-legal regulation of share repurchase of listed companies in China,including resolution procedure,source of funds,quantity and price regulation of share repurchase.Around the controversy between board centralism and shareholder meeting centralism of corporate governance in the theory of Company Law,there is a controversy between board of directors and shareholder meeting resolution in the legal regulation of decision-making procedure of share repurchase of Listed Companies in Company Law.In terms of legal regulation of repurchase fund sources,there are four modes:distributable surplus mode,distributable surplus+issuing new shares financing mode,distributable surplus+capital accumulation fund mode and substantive solvency mode.In terms of the legal regulation of the quantity and price of repurchase,there are three modes:the single upper limit model of the quantity of repurchase,the model of integrating substantive solvency with directors' fiduciary duties and rules of business judgment,and the model of regulating the quantity of share repurchase and giving judicial organs the decision on the repurchase price in dispute.China should set up a differentiated share repurchase resolution procedure coordinated with the centralism of the shareholders' meeting in the Company Law,establish the rules of substantive solvency of listed companies,select the regulation mode of the quantity of share repurchase in line with China's national conditions,and construct a dispute resolution mechanism for the price of agreement repurchase.Chapter 4 is the in-process legal regulation of share repurchase of listed companies in China,focusing on the prevention of market manipulation,insider trading and the use of third-party subjects to circumvent repurchase restrictions and other illegal acts.To improve the legal regulation of suspected market manipulation in share repurchase of listed companies,it is necessary to establish the "dual" regulatory logic.On the one hand,we should establish a"safe harbor" system for share repurchase of listed companies.On the other hand,we should differentiate and regulate the illegal acts of share repurchase and market manipulation of listed companies,which the latter uses the advantages brought by the former to carry out market manipulation and other illegal acts,establish the public commitment system and its supervision system of share repurchase of listed companies.The legal regulation of suspected insider trading in share repurchase of listed companies focuses on perfecting the prohibition system of sensitive period transactions and the system of reducing the isolation period of insiders,and scientifically defining the main scope of insiders in share repurchase of listed companies.For avoidance of repurchase,we should establish appropriate regulation rules for cross-shareholding between parent and subsidiary companies,and at the same time,strengthen the regulation of financial support to protect creditors.Chapter 5 is the post-legal regulation of share repurchase of listed companies in China.Specifically from three aspects:in the legal repurchase situation,the rights of shares and the post-processing mechanism of the shares;in the illegal repurchase situation,the rights of shares and the legal responsibility of the relevant subjects;in the illegal repurchase situation,the rights of shareholders relief mechanism.The state of shareholder rights under legal repurchase in China should insist on the theory that shareholder rights(part)should be suspended.The legal system of treasury shares should be written into the Company Law to improve the predictability and stability of the legal system of repurchase.The illegal repurchase of shares by listed companies should be differentiated according to the specific legal norms they violate.The system of directors' direct liability for compensation should be established,the administrative legal liability of relevant subjects in the Company Law should be supplemented,and the crime of breach of trust should be added to the criminal law.At the same time,we should improve the shareholder litigation mechanism under share repurchase and protect the legitimate rights and interests of shareholders.