A Legal Study On Provisions Of Limiting The Rights OfShareholders' Appointment Of Directors

In the face of today's increasingly fierce acquisition and anti-takeover war,many listed companies in the company's articles of regulations to prevent hostile takeovers invasion.The listed company shall,by providing in its articles the provisions on restricting the election of the directors 'directors' rights,to prevent the purchaser from obtaining the management control of the target company through the re-election of the directors so as to achieve the purpose of preventing the hostile takeover.From the famous port in 1998 to buy love to make the event,love to make in the company's charter to restrict the appointment of directors to the terms of the new continent in 2006 to amend the "New Continent Holding Co.,Ltd." motion added to the shareholders of the restrictions on the rights of directors Have responded to the increasing number of companies in China's listed companies in order to prevent hostile takeover in the company's charter to increase the restrictions on the election of directors.At the time of these acquisitions,the SFC often only found that the relevant provisions of the "non-standard",so that the restrictions on the election of shareholders and its anti-takeover measures as the focus of controversy.In this paper,the anti-takeover effect of the restrictive shareholders in the articles of association of listed companies is divided into four chapters.The anti-takeover effect can be divided into four chapters.The first chapter is the relevant theoretical analysis of the restrictive clause of the directors of the shareholders as anti-takeover measures,which includes the concept and form analysis of the anti-takeover,the theory and concept of restricting the rights of the directors to choose the directors,the types of articles,Including the limitationof the terms of the shareholders' holdings,limiting the terms of the shareholders' holdings,limiting the terms of the directors' eligibility and the limitation of the duration of the directors.In addition,the domestic and international arguments for the positive and negative effects of the debate is very intense,the positive role includes a direct reduction of the target company's anti-acquisition costs;the second is conducive to the long-term incentives of the board,the company's long-term development,Personnel and shareholders to implement long-term behavior,so as to avoid short-sighted behavior is conducive to the company's long-term stable development.Third,to maintain the stability of the board of directors of listed companies and independence,enhance the executive power of the board.The negative effect is that,first,the interests of the interests of small and medium shareholders,according to the articles of association to the shareholders to exercise the requirements of the election of directors,for small and medium shareholders,they lost their right to propose the company's affairs.Second,the company's interests to protect the interests of those who have the interests of the control of the curing is not conducive to the company's innovation and development,will make the members of the members of the curing,maintenance of vested interests,but also the company's control in the hands of individual directors,is not conducive to the company's Innovation and development led to rent-seeking behavior.Third,is not conducive to the survival of the market economy of the fittest,for the stock of listed companies,three percent of the proposal is already very high,if the standard to improve,in essence,is to improve the cost of mergers and acquisitions,the company is difficult to do Big and stronger,transaction costs increase.The second chapter introduces the classic anti-takeover cases at home and abroad and the relevant legal analysis,and the brief description of the conflict between the mandatory provisions of the law and the autonomy of the articles of association.The domestic anti-takeover case includes the acquisition of love in Hong Kong to make the shares of love to use the shares of the use of the provisions of the provisions of the provisions of the provisions of the sorghum,and finally confirmed by the Commission is not standardized;Beijing Yuxing and Shanghai technology equity dispute in the use of the provisions of the Articles of Association The board of directors does not act as a way to prevent the company's control into the hands of the acquirer;and Shanghai Xinmei equity dispute case in the face of the acquisition of the target company in the face of the intention to take the way to amend the company toresist the acquisition.From the above case,we can see that China's Securities Regulatory Commission is now a negative attitude to restrict the shareholders' rights clause as an anti-takeover measure in the statute,but there is no direct attitude towards whether or not it violates the law.The foreign part introduces the "board of directors" of the United States and the "shareholders of the centralism" of the British in the anti-takeover on the relevant provisions and the listing of its listed companies to restrict the selection of shareholders in the classic case.Finally,the conflict between the mandatory law and the autonomy of the articles of association is pointed out.From the corporate contract theory of Coase theorem,it can be seen that the significant value of the company law can reduce the cost of negotiating the contract within the company's main body.However,Equity interests against the interests of small shareholders,the interests of small shareholders need to be concerned about.In addition,the shareholders of the company law is legally statutory and can not be arbitrarily excluded from the articles of association.If the shareholders' generalization is restricted by the articles of association,one of the borders is the distinction between the initial charter and the subsequent charter.The initial articles may be considered valid because of their openness,but the subsequent articles may be deemed to be for the purpose of stabilizing the control of the original management and restricting the interests of the new shareholders,which may be considered unfair and illegal.The third chapter is the analysis of the legal effect and the anti-takeover effect of the specific terms of the nomination of the directors,including the limitation of the shareholders 'holding time clause,which limits the shareholders' rights to the invalid terms and the direct purchase The effect of the company's control.Limit the proportion of shareholders to participate in the terms of the proposed increase in China's legal requirements of 5% of the proportion of shareholding standards should be invalid,but to prevent a planned acquisition,the effect is minimal.Restricting the terms and conditions of the directorship of the directors will limit the number of candidates to be elected by the directors.However,since the majority of the purchasers are companies,the directors' candidates will not be an obstacle to their control.Finally,it is a staggered board system,which is different from the direct limit on the number of directors elected directors,should be effective system,but its anti-takeover effect will be based on the development of the director of the length of time different.The fourth chapter is the author's intention and suggestion to set the limit of theshareholder's nomination director in the anti-takeover.Which includes the analysis of the current situation of the legal practice of the anti-takeover and shareholder's nomination of directors.First,the abuse of the statutes of the articles of association,the use of the articles of association by the listed companies to exclude the shareholders' rights;the second is the lack of relief system in the acquisition of listed companies In the acquisition and the anti-takeover case,only the SFC has interfered with the relationship,but the legitimacy of the measures as the administrative authorities difficult to identify,in the acquisition of the injured party can not get effective legal relief The First,the establishment of China's listed company directors nomination system,standardize the listed company elected directors of the system requirements,to safeguard the interests of small and medium shareholders;The second is to give full play to the role of the court in the performance of the referee,as a result of improper acquisition of the behavior of the party's important relief system.