| Public companies play an important role in China's social and economic life. Companies acquisitions and mergers highlight more the company's economic and social value from the 80's in last century. With China's accession to the WTO, in the context of globalization, China's public companies are entering the world economic system gradually. Because of the increased merger and acquisition, a number of large corporate groups are formed. M & A contribute to the formation of economies of scale, contributing to the creation of the company's world brand, contributing to the company's intensive management. With the acquisition of the situation prevailing, the issues of company's anti-takeover are increasingly prominent .In 2006 the new "acquisition management practices of public companies" out, there are more emphasis on the supervision of the acquisition, yet there are few provisions of anti-takeover regulation.So, research into the anti-takeover regulation is particularly of importance .Therefore the author does some analysis and discussion to related legal issues of anti-takeover.The frame of the paper consists of the main analysis and evaluation of some specific anti-takeover's provisions in the new introduction of "acquisition management practices of public companies", discussion and analysis of basic legal issues of related -anti-takeover ,namely the decision-making power of anti-acquisition , discussion and analysis of reasonable distribution of the anti-acquisition's decision-making power in corporate charter between shareholders and the board of directors , discussion and analysis on application of anti-takeover of the supervising mechanisms on theories of Lutheran directors'obligations, how to take on corporate social responsibilities and measures for the protection of small and medium-sized shareholders during the anti-takeover'course of the company.Firstly, there is not a currently single system of anti-takeover's legislation and regulations in our country, but the content of the "acquisition management practices of public companies" involves few related-anti-takeover provisions, yet the "acquisition management practices of public companies" in 2002 involved a fewer than the existing anti-takeover regulations, but there is a large logic contradiction in the former regulations. Now the author presents some articles in the 2006 "acquisition management practices of public companies": For example, the content of article 8 in General Provisions is that" directors ,supervisors and senior management of the target company should have loyal duties and due diligent obligations toward their owe company , should be fair to all the people to buy. Decision-making and measures taken for the acquisition by the target company's board of directors should be conducive to safeguarding the interests of the company and shareholders , the target company's board of directors should not abuse the official power to set up inappropriately obstacles to the acquisition and should not avail the corporate resources to provide any form of financial assistance for acquirers, not damaging the legitimate rights and interests of the company and its shareholders "Viewing from the provisions on decision-making power," acquisition methods "represents vague and inconsistent logic. What is "improper obstacle", if the means taken by the management from an economic point of view is reasonable and conducive to the interests of the company, it seems undesirable to the masses, such as violations of ethics and not being conducive to the interests of small shareholders, so whether or not the measures are reasonable. Article 33: without approval of shareholders, the board of directors of the target company may not dispose of the assets of the company, not outside investment, not adjusting the company's principal operations, guarantees, loans, etc in order to have a significant impact on the company's assets, liabilities, rights and interests or operating results. Whether or not such implied terms of "these matters" can authorize only to shareholders. However, the cumbersome procedures for shareholder meetings and "apathy" of medium-sized and small shareholders combined with the possibility of non-professional of shareholders bring about low efficiency of decision-making power.Secondly, decision-making power of anti-takeover regulations are the most fundamental problem of anti-takeover law and are the solution to the foundation of some problem of anti-takeover-related. The definition of anti-acquisition decision-making power is when confronted with the acquisition of companies, in accordance with the law and the provisions of the corporate charter, the regulations have the right to decide the company's board of directors or shareholders, which agency will take the anti-takeover measures and measures taken are legal. Decision-making power of anti-takeover regulations should reflect the maximum interests of shareholders. The principle of maximization of shareholder value shows the fundamental characteristics of the capital operation, also displays the fundamental concept of business; The decision-making power of anti-takeover regulation should embody the principle of commercial freedom and should embody the principle of corporate social responsibilities. The current international popularities of two models of decision-making of anti- acquisition are the policy-making of board of trustees in US and the policy-making of shareholder in UK. Comparing the two decision-making models, contrasting with China's economic environment combined with the company's internal governance structure, our securities legislation and the regulate system of enacting legislation in our country, I think the concept of anti-takeover model of decision-making should help the company's future development, help to integrate into the world economy. At the early stages of the market, the cases involving the vital interests of the shareholders on the acquisition and anti-takeover shall be allocated to shareholders to decide and according to different situations of companies, cases related to technical and the economic strategies of company should be authorized to the board of directors through the constitutionally operation mandated. When conditions are ripe, China's decision-making model of anti-takeover should learn and transplant from American model of decision-making board of directors on the anti-acquisition. The cases on acquisition related to anti-monopolies in the market, the market economic order and social responsibilities can be submitted to an independent acquired committee.Thirdly, anti-takeover should embody the principle of commercial freedom, the so-called commercial freedom means the concept of commercial law including principles of transactions that is simple and fast .The articles of association mandated can come to that. The so-called articles of association means company's norms of organization and operation , that is the basic documents of records of the company's nature, purpose, business scope and the organizational structure, activities, rights and obligations of distribution.The provisions of mandatory anti-takeover may be placed in the charter including imperative matters recorded. Provisions of anti-takeover involved in the company's survival and vital interests of shareholders should be only enacted and decided by shareholders to carry out, the imperative provisions such as "scorched earth strategy," requiring the company to dispose of, purchase, be replacement of the net assets for more than 30 should be allocated to shareholder Council to make.For some anti-takeover provisions, the company's charter can authorize or make complementarily. That, such as "restrictions on the right of a major shareholder to vote, " means on the condition that acquirers achieve the quantitative ratio of the acquisition, if the acquirers want to get the nomination of their directors into management, according to different situations of companies, the power of nomination can be authorized to directors conditionally(such as more than 10﹪holder or more, or holding six months or a year, etc.).Fourthly, the Lutheran obligations, also known as fiduciary duty, are management obligations. Lutheran obligations of company's directors are derived from the common and equitable law. The early companies were set up in UK in accordance with principles of trust, so equity and common law generally recognized that directors are the trustee of shareholders. With the company's evolution and the emergence of the company law, the board of directors as corporate bodies carries out the power of companies, entitling a wide range of business management services and independent decision-making power. The nature of the power is an ability of change the legal relationship of company, therefore the board of directors and the directors, first of all, shoulder the company's fiduciary obligations.Lutheran obligations of company directors can be classified in accordance with standard as duties of care and duties of loyalty. The standard of duties of care of directors in US company law means conducts of "ordinary prudent person", that is they must exert an appropriate conduct to some degree resembling a prudent person play the skills and diligence and attention in similar circumstances .The power of anti-takeover authorized to board of directors in US is derived from the perfect theories and rich Lutheran obligation trial practices. Supreme court in Delaware in US as the forefront of Case law on companies act completes the shape of "trilogy under the late 80's acquisition of the activities in US with the three famous Unocal / Moran / Revlon cases. The completion of Unocal in particular improves the early commercial judge rulers. Unocal case identifies three principles: (1) the target company's directors are responsible to the burden of proof to prove that they reasonably believe that the acquisition would threaten the company's operating policies and the existence of the policy of its efficiency (rationality); (2) the anti-takeover behavior taken by director must pertain appropriately to the threat of acquisition posed by the acquirers(more appropriate); (3) independent outside directors and presence of attending the board meeting will improve the conduct of the aforementioned (1) (2) proof of the effectiveness (of proof). The court amends the commercial judge rules: (1) the burden of proof rules (2) the need to prove that - a reasonable basis. (3) the proof of proportionality - reasonable measures.The life of law is to reside in experience. Through the practice of anti-takeover jurisprudence and effective implement and promotion of system of shareholder representative litigation and learning and transplanting excellent rules of law from US, so the monitoring mechanism of obligations of directors in our country makes conductive to serve the company's growth.Fifthly, the corporate social responsibilities mean that companies should not only maximize profit for shareholders as the sole purpose of existence, but also maximizing the care and promotion of the interests of all societies other than shareholders, including consumers benefits, staff benefits, the interests of creditors and the interests of small and medium-sized competitors, the local community benefits, environmental benefits, social benefits and the weak public interests, not only including the human rights ,especially social rights, but also including corporate and non-corporate organization rights and benefits. Corporate social responsibilities are in favor of the company's long-term development and upgrading its image of society. Should the company decide priority of social responsibilities, or maximize the benefits to shareholders for the first? Or taking into account the balance between the two? I think our company in pursuit of maximizing benefits of shareholders should comply with the minimum legal obligations and at the same time with the scope of discretion, from the moral and ethical point, the company should weigh up the balance of between shareholders and corporate social responsibilities. If being irreconcilable with relationship between the two, then the company should have the priority of social responsibilities. In addition, the continued strengthening of external legislation such as product quality, environmental quality, anti-monopoly law should be made to create a better oversight of corporate social responsibilities.Joint-stock companies originated in the legal systems of Western countries, after the development of one hundred years of practice are proved to be effective. Public companies in particular have played a very important role in accumulating rapidly idle funds in society and promotion of company's development and expansion. If the public companies are unfavorable of the small and medium-sized investment protection, then the shareholders will be reluctant to go into investments, eventually joint-stock system will lose its due halo. Taking the legal means in favor of small and medium-sized shareholders during the acquisition can achieve substantial justice, fairness and justice, which are in line with the benefits of community and activate small and medium-sized shareholders to participate actively in governance, improving corporate performance, which is also consist with the purpose of China's company law and securities law to protect small and medium-sized shareholders.
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