A Study On The Legal Issues Of Anti-takeover Of Listed Corporations

In recent years,hostile takeover is common in China's securities market,and anti-takeover measures are abused.Multiple subjects are competing fiercely for interests.There are a lot of blanks in anti-takeover legislation and there is hysteretic nature and other defects in the relevant legal systems.These raise a host of questions.This not only harms the legitimate rights and interests of all parties,but also disturbs the good order of the securities market.Therefore,it is of great theoretical and practical significance to study the legal issues of anti-takeover of listed companies.This paper starts from practice and the legislation status of China's company law,securities law and other laws and regulations,which is combined with the corresponding historical background.It draws lessons from the experience of foreign law and practice.This paper analyzes and discusses the relevant issues from the perspectives of theory,legislation and practice in order to achieve the goal of standardizing the anti-takeover behavior,safeguarding the legitimate interests of each subject,and forming a healthy and orderly market for the acquisition and anti-takeover.This paper is mainly divided into four parts to discuss.The first part is an overview of the listed company's anti-takeover.Firstly,this paper defines the concepts of takeover,hostile takeover and anti-takeover,and the classification standard and types of anti-takeover measures are expounded.The object of study of this paper is limited to the anti-takeover behavior of listed companies.Then it introduces the theoretical origin of anti-takeover "the Theory of Market for Corporate Control" and "Stakeholder Theory",analyzes and compares their respective theoretical defects and values.Finally,it summarizes the reasons for the rationality of anti-takeover.The second part mainly generalizes the problems in the legislation and practice of anti-takeover in China.There is no special anti-takeover legislation in China.The company law and the securities law can only provide scattered and indirect basis for anti-takeover in the field of social relations adjusted by them.There is no provision on anti-takeover in administrative regulations.Departmental rules and regulations are important parts of the legal source of anti-takeover,they play very positive roles.But there is still room for improvement.The absence of legal norms leads to two problems,one is that the ownership of the right to decide on an anti-takeover is unclear,the other is that the effectiveness of the anti-takeover measures is unjustified.The regulation of information disclosure obligation point can not adapt to the reality,and weak regulatory penalties don't have deterrent effect.In practice,the putative range of persons acting in concert is in chaos,leveraged buyouts carry huge risks and the conflict of interest between the various subjects is also very serious.The third part analyzes the problems listed in the second part.First of all,it analyzes and demonstrates the most fundamental problem of anti-takeover--the choice of the right of decision of anti-takeover.From the perspective of comparative law,it introduces "the decision made by the shareholders' meeting" in the UK," the decision made by the board of directors" in America and "Co-decision model" in Germany.Through comparison,it is found that factors such as corporate governance mode and social and economic development status affect the ownership of anti-takeover decision right.Then it judges whether the anti-takeover measures in our country are legal or not according to the autonomy of the articles of association which is very important in the company law.At the same time,combined with the principle of shareholder equality and fiduciary duty of directors,this paper analyzes the rights and obligations of controlling shareholders,middle-small shareholders and directors in anti-takeover.Finally,the paper reflects on the anti-takeover information disclosure problems.The root of information disclosure problem in China is that the legislation is not flexible enough and the information disclosure is superficial.The fourth part puts forward legislative suggestions from the two aspects of the improvement of China's anti-takeover legal system and the improvement of the supporting legal system related to anti-takeover.In the special legislation of anti-takeover,it needs to make it clear that the right to decide anti-takeover belongs to the general meeting of shareholders and the paper suggests that it should establish model anti-takeover clauses and provide a list of anti-takeover measures.This will help fill the vacancy of the legal system of anti-takeover and determine the general rules of anti-takeover.In the duties of directors,the fiduciary duty of directors should be refined,the information disclosure obligation of directors should be strengthened,the burden of proof of directors should be added,and the compensation and supervision mechanism should be established.In the information disclosure system,it should implement penetrating disclosure.The obligation point of information disclosure should be determined flexibly,the eontent of information disclosure should be increased,and the function of information disclosure should be brought into play.In supervision system,we should establish a supervision system that focuses on supervision in advance and in the course of the event,which is supplemented by ex post relief.And we should increase the intensity of regulatory penalties.