Study On The Effectiveness Of Anti-takeover Provisions Of The Articles Of Association Of Listed Companies

Anti-takeover of listed companies has always been a hot topic of corporate governance research.Around the theory of corporate governance,foreign scholars have put forward many profound theories and unique insights in competing with each other.These theories and opinions have deeply imprinted the anti-takeover system.Compared with developed capital markets in foreign countries,there are still many problems in China's capital market,such as un-smooth financing,opaque operation and insufficient investor protection.Corporate acquisitions and anti-takeovers also have these problems.Acquisition and anti-takeover reflects the interests of all parties in the game,including the acquirer,controlling shareholder,the board of directors.In the process,investors in the vast market,especially the interests of minority shareholders of the company,are seriously neglected or even eroded.The value judgments of the anti-takeover provisions should be more cautious.It is necessary to clarify the core value of anti-takeover provisions from multiple levels of practice and legislation.In the traditional divided system of mandatory norms and arbitrary norms,the validity of the anti-takeover provisions was found to be in a dilemma.Professor Eisenberg's classification of company law norms helps to clarify the anti-takeover provisions corresponding to the legal norms of the property and determine the effectiveness of anti-takeover terms in principle.anti-takeover provisions,which are corresponding arbitrary norms or even have no clear legal norms to correspond,need drawing lessons from the theory of validity of legal acts of civil law and constructing the three elements review system of anti-takeover provisions,including "elements of establishment,specific validation requirements and the cause of obstruction".Incorporating anti-takeover legitimacy into the cause of obstruction helps to give more flexible ways to judge the validity of the anti-takeover provisions.So that it meets the real needs of the market and the principle of investor protection.In this regard,the effectiveness of the anti-takeover provisions will change due to unlawful acquisitions and deteriorating corporate governance.The first part of this paper mainly analyzes the status quo and effectiveness dilemma in anti-takeover research.On the one hand,the acquisition of Vanke by BaoNeng can lead to the anti-takeover of the company and briefly explain the status quo of the current legislation on acquisition and anti-takeover in our country.On the other hand,through the data analysis ofA-share listed companies,type research is needed based on the different results of the anti-takeover provisions.The validity of the anti-takeover provisions under the traditional dichotomy exists three levels of predicament,respectively,including the analysis of mandatory norms,the validity of the anti-takeover provisions when violating the arbitrary norms and the validity of anti-takeover provisions when no legal norms to correspond.The second part of this article mainly analyzes the causes of the predicament of the validity of anti-takeover provisions in domestic listed companies,and analyzes four main reasons : the limitation of "freedom of contract" in the constitution,the practice of corporate law lacks well-established standards,the confuse of legitimacy determination and validity confirmation of anti-takeover provisions,and the ignorance of the reality of corporate governance differences in validity confirmation.The third part of this article mainly expounds Professor Eisenberg's classification of company law norms and the basic principles of validity judgement that should be upheld.On this basis,the article will make a detailed analysis on the effectiveness of the anti-takeover provisions.In this regard,the anti-takeover provisions that affect the rights and obligations of shareholders are mostly ineffective in principle because they violate the mandatory norms,while anti-takeover provisions that affect the rights and obligations of directors are in principle valid because they do not violate the mandatory norms.The fourth part of this article mainly discusses the changes in the effectiveness of anti-takeover clauses under certain circumstances.In particular,some anti-takeover provisions correspond to arbitrary norms and do not even have clear legal norms corresponding to them.In this case,we should consider drawing reference from the evaluation system of the validity of legal acts in civil law to make a comprehensive identification of the anti-takeover provisions.Specifically,the deterioration of corporate governance may lead to the anti-takeover provisions affecting the rights and obligations of the directors from being valid in principle to invalid;the acquisition of illegal takeover by the acquirer will result in the anti-takeover clause affecting the rights and obligations of shareholders becoming invalid in principle from valid.The fifth part of this article mainly returns to the anti-takeover legislation in the future,which should Should clearly define the malicious acquisition,improve information disclosure,increase penalties and enrich relief channels during takeover and anti-takeover.As for the establishment of effectiveness examination system of anti-takeover provisions,legislatorsshould adopt a reasonable regulation of special validation requirements from the perspective of negative evaluation,and adopt an inclusive and guiding attitude toward the anti-takeover provisions under the market principle that "absence of legal prohibition means freedom".