Legality Research On Anti-Takeovers Provisions Of Listed Companies

To elaborate the theme of the validity of the ATPs of listed companies,this paper,according to the sequence of classifying the constitutions,constructing judgment standard and then analyzing the specific provisions,is divided into four parts.In the first part of this paper,the author briefly introduces the ATPs' concepts and types,and analyzes the standard and applicability of the ATPs in the rest three parts of the paper.Additionally,the rest three parts mainly based on the following ideas: Is there any difference in the criteria of judgment between the existing ATPs and the subsequent ATPs which added by revising the constitution? What are the respective analysis ideas of the two type ATPs? Is there any possibility that the validity of the proposed ATPs will be rejected? What is the essence of the judgment on the validity of the unauthorized ATPs in the constitution? How does the judgment standard apply to the legal analysis of specific ATPs? In accordance with the above logic,the author makes a typological analysis of the ATPs for the rest three parts and classifies the constitution according to the difference in time of introduction of ATPs and constructs the validity judgment standards separately and then analyzes the specific ATPs in conjunction with the validity standards.The details are as follows:In the first part of the paper,the author gives an overview of the ATPs.The purpose of the ATPs is to make it more difficult for the purchaser to enter the target company's board of directors by adding defensive terms to the company's constitution.The common terms include super-majority,fair price amendments to articles of incorporation,and staged and classified boards of directors.According to the timing of the introduction of bylaws under the ATPs,it can be divided into two categories: one is the ATPs that the charter has authorized,which already exists in the initial charter;the other is the unauthorized ATPs of the charter,which introduced during the revision of the bylaws.In the second part of the paper,the author describes the ATPs that the charter has authorized.According to the company contract theory,if the shareholders are entered into the company as a kind of transaction arrangement,then the company's articles of association and company law exist as the basic trading conditions of the transaction.The ATPs exists as part of the contents of the company's charter.The content of the company's charter mainly embodies the autonomy of the shareholders' autonomy.The company law can be used as an effective supplement and correction for the autonomy of the shareholders' autonomy.The ATPs that the constitutions have authorized are the arrangements made by the shareholders for their own rights through autonomy of the meaning.The shareholders have full autonomy in decision-making without having to consider the nature of the rights of the shareholders involved in the terms.Therefore,if the terms of the authorization are not violation of the mandatory provisions of laws and regulations,and the establishment of the constitution fully reflects the autonomy of the company's shareholders,then its effectiveness should be recognized.In the third part of the paper,the author analyzes the ATPs that the charter has not authorize.Unlike the ATPs that have been authorized in the constitutions,the unauthorized ATPs were introduced into the company's constitutions through resolutions of the shareholders' meeting.The results were not derived from the common will of the shareholders of the company but were derived from resolutions of the shareholders' meeting.Judgment on the validity of the terms translates into judgement on the validity of resolutions of the shareholders' meeting.The result of the resolution of the shareholders' meeting is a capital majority decision and rises to the will of the company.This approach may have the potential to ignore the interests of small and medium shareholders and lead to the loss of their major interests.Based on the principle of substantive equality and the efficiency of the company's operations,the subsequent amendments to the statute should attach importance to the protection of the basic management rights of small and medium shareholders,to maintain the stability of their major trading expectations.Regarding the judgment of the validity of the unauthorized ATPs of the constitutions,the main criteria in addition to the mandatory provisions of the law are whether the content of the terms restricts the basic management rights of the shareholders and causes significant changes in the expectations of the shareholders' transactions.In the fourth part of the paper,the author conducts a legal analysis of the typical anti-takeover clause.After clearing the validity of the ATPs to judge the basic standards,it is also necessary to combine the terms and standards and carry out legal analysis one by one,with a view to resolving the major disputes in practice or providing a possible reference.