Research On Legal Regulation Of Anti-Takeover Provisions In The Articles Of Listed Companies

In the field of corporate mergers and acquisitions,there is a long-term lack of adequate response to the legitimacy and rationality of the anti-takeover provisions.From the beginning of 2015,the battle of Baowan,which lasted until 2017,pushed the anti-takeover to a climax.The listed companies set up anti-takeover provisions in the company's articles of association in order to resist the invasion of barbarians,which triggered a hot discussion on the legality of the anti-takeover clause.At present,the academic community's focus on anti-takeover is still focused on the level of legitimacy,but the premise of solving this problem is the refinement of the legal rules themselves.Under the current situation of China's anti-takeover core rules,the legitimacy of anti-takeover behavior,the effectiveness boundary of anti-takeover provisions,and the regulatory path of anti-takeover provisions need to be clearly defined.This article is to conduct specific research around these contents.After the outbreak of the Baowan dispute,more than 600 listed companies revised the articles of association to introduce anti-takeover provisions.Empirical research shows that the types of anti-takeover provisions set by listed companies are diverse and different.To sort out the status quo of China's anti-takeover legislation,administrative supervision and judicial practice,it is found that there is no specific regulation on the anti-takeover provisions,and the regulatory measures are relatively simple.The above focuses on the setting of the anti-takeover provisions,the unclear validity of the clause,the vulnerability of the minority shareholders' equity,and the institutionalized regulatory mechanism has not yet formed.The anti-takeover is accompanied by the takeover.The comprehensive understanding of the anti-takeover system is inseparable from the value research on both acquisition and anti-takeover.At present,there are different views on the affirmation theory of takeover value and the affirmation theory of anti-takeover value in both academic circles.Both views have sufficient theory and value support.The principle of freedom of business conduct and the realistic need to respond to commercial practice provide a justification for anti-takeover,so the law should properly regulate anti-takeover.The company's articles of association are regulated by the autonomy law,and the freedom of the company's articles of association is limited freedom.The anti-takeover provisions shall follow the boundary of the autonomy of the charter: for mandatory norms,the articles of association shall not be excluded and applicable,and may only be followed or refined;for the arbitrary norms,the listed company may makeautonomous arrangements in the articles of association,but cannot exceed the company law.The basic principle.The establishment of the anti-takeover provisions shall follow four standards that must not violate the mandatory provisions of the law,must not violate the principle of equality of shareholders,and must not restrict or deprive shareholders of their inherent rights and may not circumvent the rules of faith obligations.Under the above criteria: the company's articles of association may not limit or deprive shareholders of the proposal,nomination rights;the classification of the board of directors shall be judged according to the provisions of the articles of association,such as only limiting the number of directors to re-elect,restricting the election of directors is invalid;The qualifications of directors shall be recognized for their validity.The listed company shall be allowed to set the golden parachute clause,but the double restrictions of the object of payment and the amount of compensation shall be followed to prevent the director from evading the obligation of believing;Controlling the authorization of shareholders shall not violate the requirements of loyalty obligations;reducing the red line of placards shall be invalid due to violation of peremptory norms,and depriving the ruling party of voting rights of the ruling party is improperly depriving the inherent rights of shareholders into invalid;the articles of association of listed companies may expand the scope of special resolutions,but The majority shareholder cannot be given a one-vote veto when setting the voting percentage of the special resolution;the effectiveness of the custom hostile takeover clause should be judged on the basis of the effect of the clause.The practice of anti-takeover decision-making power allocation,directors' letter-righteous obligations,and anti-takeover supervision system in the United Kingdom and the United States provides institutional experience for China's regulation of anti-takeover provisions.In the future,China should focus on improving the system of anti-takeover provisions and building a regulatory system for anti-takeover provisions.The anti-takeover model clause,the anti-takeover decision-making power to the shareholders' meeting,the establishment of the director's fiduciary duty,and the protection of minority shareholders' rights and interests,etc.,improve the anti-takeover legal system;the CSRC leads the administrative supervision and the investment center The right and judicial organs are appropriately involved in constructing a regulatory mechanism for anti-takeover provisions...