Examine Foreign Mergers And Acquisitions In The National Security Review System

With the development of China's reform and opening-up policy and economic globalization, foreign direct investment ("FDI") is playing a very important role in the economic development of China. However, just liking a two edged sword, FDI can bring huge amount of fund, technologies and advanced management experiences, meanwhile, it might also bring significant negative effect to China's economy if it was not governed under reasonable "game rules". Therefore, hot debate regarding whether FDI is threatening the national security of China is being held in the academic circles of China when the way of FDI is under significant change in China and the control right of some famous enterprises has fell into foreigners' hand.The Antimonopoly Law of China became effective upon August 1, 20008, the article 31 of which expressly stipulates National Security Review System for Foreign Mergers ("NSRSFMA"), which fetched up the blank of NSRSFMA from law aspect of China. However, whether NSRSFMA shall be stipulated in Antimonopoly Law of China, as well as how to effectively design China's NSRSFMA are the questions we must face. This thesis analyzes, from the perspective of the article 31 of Antimonopoly Law of China, the NSRSFMA of China, though introducing the development and status of foreign mergers and acquisitions ("M&A") in China and studying excellent legislation experiences, with the intent to expound author's comprehension of NSRSFMA and the suggestions to modify the NSRSFMA of China, hoping to give suggestions to the future relevant legislation of China.This thesis comprises five chapters, the abstract of which are as follows:Chapter one focuses on, by indicating such new characteristics as acquiring control right of Foreign M&A in China, introducing the importance of FDI in China through describing the development and trend of FDI in China, in order to give examples of the influence of FDI to the national security of China for the following contents.Chapter two analyzes, by firstly introduces the theory meaning of M&A and author's comprehension of national security, the relationship of foreign M&A and national security, and furthermore analyzes the influence of foreign M&A to national security, in order to indicate the importance of the existence of NSRSFMA.Chapter three analyzes and comments on the NSRSFMA of China from the perspective of the article 31 of the Antimonopoly Law of PRC, and explains the inconsistence of NSRSFMA and antimonopoly law because of the two different value orientation of these two systems, and points out some defects NSRSFMA such as uncertainty of review and investigation authority and standard, etc.Chapter four is mainly about introducing the excellent legislation examples of the United States, Japan and Canada. By introducing Exon-Florio clause of the United States and its amendment, Investment Canada Act and its amendment (C-59 Act), Foreign Investment Law of Japan, Foreign Exchange and Trade Law of Japan, the author intends to render references for the NSRSFMA of China.Chapter five is about the consideration and recommendation of the author towards the NSRSFMA of China based on the forgoing analysis of the Antimonopoly Law of China and the introduction of the excellent legislation examples of foreign countries. The author's opinion is that NSRSFMA of China shall be governed under special law and the subject, standard and procedure of which shall be explicitly stipulated, so as to construct effective system to protect the national security of China.