The Interests Balance And Legal Regulation Of Anti-takeover Actions Of Listed Corporations

With the development of the market economy, the competition of the listed companies between takeover and anti-takeover will be more and more intense. As one of the effective approaches to realize the rational distribution of social resources, the listed company's takeover receives the definiteness and encouragement from the current police and legal system. Confronted the takeover, the target corporation takes many kinds of anti-takeover measures to safeguard its control power. Contrasting with the active practice of the anti-takeover, the theory of anti-takeover is very immature. Moreover, in China, the deficiency in law is obvious. So, it has very important realistic significance to heighten the theory of anti-takeover and improve the legislation of anti-takeover.Anti-takeover of listed corporations is some actions taken by the target corporations to prevent and resist purchaser's actions, in order to avoid the transformation of control power. The core of the anti-overtake lies in prevention of the transformation of the corporation's control power, the essence of the anti-takeover is the control and contest of the target corporation's ownership and the ownership of the target corporations'interests which owned by the relevant subjects. No mater what motives for takeover actions, its direct goal is to get the corporation's control in the contest. For the holding shareholders, control power means gaining the profits and realizing itself will through corporation; for the managers of the corporations, control power means meeting a series of utility more than a work position. In China, on condition that shell resources of the listed corporations are inadequately supplied, the control power is more valuable. Along with the undercurrent of takeover of Chinese capital market, anti-takeover phenomenon is surging. For the process of the anti-takeover involves multi-subjects'interests, the conflicts and contradictions of interests will appear. Besides the problem between the takeovers and the target corporations, it also includes the adjustment of the contradiction between the management and shareholders, the social benefit should be considered as well. So it focuses on the legislation of anti-takeover to balance the interests of different subjects in takeover. In China the legislation for anti-takeover still lies in a primary stage, so it can't keep pace with the development of the security market. If we improve the legislation of anti-takeover and establish the anti-takeover system which is suitable for our national conditions, the security will only develop with harmony and heath.There are three parts in the dissertation, it expounds the basic legal problems of listed corporations'anti-takeover, the balance of interests in listed corporations'anti-overtake and the regulation of the anti-overtake, separately. Part one introduces the basic legal problems relating to the referring to anti-takeover system. The purpose of the listed corporations'anti-takeover is to take actions to protection and resistance by itself in hostile takeover by the target corporation. So if we study the connotation of anti-takeover system, firstly, we should understand the listed corporations'takeover and the hostile takeover. Listed corporations'takeover is an activity that causes the purchaser to gain or may gain the control of the target corporation, by controlling certain parts of a listed company's stocks though the stocks transfer activities in the stock market or other legal activities. The fundamental principles include: the equal treatment of shareholders, the minority protection, the disclosure and the like. These embody the ideals of the three principles:"open, equity, and justice"as the basic value of security law in listed corporations'anti-takeover and the anti-takeover actions are restricted by that. According to the attitude of the corporation between the target corporations'managers and the takeovers, hostile takeover divides into two parts: amiable takeover and hostile takeover. Hostile takeover is the purchase that confronts the resistance and objection of the target corporation's management or the one happens when the target corporation's management dose not know. It ration or not to take the anti-takeover as the measures of the defendance against hostile takeovers, which concerns the value judgment of the legislation establishment for anti-takeover in China. In the dissertation, we incline towards the anti-takeover in value judgment partly and support it in some degree, at the same time we should take measures to restrict to the target corporations'abusing activities.Part two makes an exposition of the conflict of the interests of the all subjects in the process of the listed corporations'anti-takeover, and makes an attempt to seek the approach which is used to balance the interests. The conflict of interests between shareholders and management is fundamental, there are also the conflict of interests among the majority shareholders, the minority shareholders and listed corporations, the conflict of interest among shareholders, listed corporations and corporation creditors, and conflict between the purchaser and social interests. There are two modes of the ownership of the decision-making power of the anti-takeover:"shareholder'meeting to the right to make decision"in English and"board to the right to make decision"in America. From the reality of our country, the dissertation thinks that the decision-making power should be entrusted to shareholders'meeting like English, but the concrete designs of the system should be more completely compared with it. It's mainly the fault of the management of the listed corporation in resisting of hostile anti-takeover. They resist hostile anti-takeover positively, because they do not want to lose the power of management. Therefore we not only support that they have right to resist takeover, but should restrict to its actions. In this dissertation, it describes the leading defending measures and the process defending measure separately.Part there is about the legal regulations relating to anti-takeover. In china, the legislations of anti-takeover lag behind the practice. Although, compared with the old, new"corporation law","security law"and"management methods of takeover of listed corporations"make progress on the rules relating to anti-takeovers, but The legislations of anti-takeover also has deficiency that the referring rules is scattered , too general and lacking operability. Referring to the mature experience of the legislations of anti-takeover of American , English, and EU and the like in some counties and regions, in combination with the legislative status, this dissertation makes some suggestions that are setting the identifying and judging criteria, imposing and improving the target corporation's duty of the disclosure in the process of anti-takeover, strengthening the directors'duty of faith and care to corporation and shareholders, establishing and improving the judicial remedy systems. We hope it could make contributions to the further study of the listed corporations'anti-takeover system.