Conflict Of Laws Of Foreign Mergers And Acquisitions And Coordination Perfect

Recently, with the adoption of the opening and reforming policy as well as quick expansion of international company, the foreign capital merger and acquisition (M&A) has become one of the most important methods of foreign capital investment. It exerts great influence on our country's economy. Facing the various problems of the foreign capital M&A, laws on this concern are great needed. However, we don't have a systematic law governing the foreign capital M&A, different laws and regulations conflict with each other and some of them have many defects, which can not meet the real needs of economic development, thus greatly affects the quantity and quality of our country's utilizing foreign capital. How to establish and improve the law of the foreign capital M&A in accordance with the needs of the economic development has become one of the important task. Focus on the practice, the author compares and analyzes the legislative conflicts aroused by the various regulations of the foreign capital M&A, and puts forward the coordinating and improving suggestions. The thesis has five chapters: Chapter one, firstly clearly defines the concepts correlated with foreign capital M&A, adopts the capital control standard to define the foreign capital so as to regulate indirect foreign capital M&A. Then classifies the foreign capital M&A into different categories and gives the general introduction of two models of foreign capital M&A in our law: share acquisition and assets acquisition. Chapter two, at first, General introduction of our current regulations of foreign capital M&A, then, putting forward the practical principal on how to coordinate them from legislative perspective. Secondly, the author compares and analyzes the conflicts of the regulations of corporate law with foreign-funded law from two aspects: the contributive way and transfer of share, last suggests to modify the cooperate law, introduces the comprised capital system applied to all the companies. The first installment depends on the specific conditions of the merged enterprise. And add special regulations supervising the special transfer of shares in the foreign-funded law. Chapter three, probes into the legislative roots for the conflicts of the regulations on foreign investment permission and examining and approving foreign capital M&A. From consideration of the legislative principal, suggests how to coordinate and apply different regulations on the transfer of share, limited company by shares, etc. Chapter four is an anatomy of special regulations of merger and acquisition of the state-owned enterprise by foreign investors in four aspects, the disposition of state-owned asset, obligation of the selecting the foreign investors, special procedure and debt assuming. The author holds that the state-owned assets should have the same legal position as that of other ownership. When the creditors of the state-owned enterprise transfer their rights, they needn't ask for the permits from the state-owned enterprise and state equity holder, and choose the qualified foreign investors either. As for the legislative conflicts of the debt assuming, the author believes that it is not proper for foreign-funded enterprise to shoulder the related liability with the original company within the range of the accepted assets, and sets forth some tentative suggestions to resolve the conflicts. Chapter five is about the merger and acquisitions of listed company by foreign investors, the author analyzes and probes into some problems rising from the relative regulations such as: the character of new company which is merged or acquired by foreign investor, whether or not the company can enjoy favorable revenue policy and how to govern it, the contradiction of the limitation of the foreign capital proportion. After that, definitudes that the new company is foreign-funded company and can enjoy the favorable policy when they meet with the certain conditions. As for the proportions limitation of the foreign capital, the author suggests to modify the foreign jointed-venture law, acknowledge the invested activities which are lower than the minimum proportion. At the same time, distinguishes the position and treatment of the legal subjective rising from different invested activities. Last the author think that we should approve the foreign capital to merge the listed company publicly according to the securities law and regulation.