Research On Decision-making Power Of Listed Companies' Anti-acquisition

With the continuous development of the capital market,the way to expand the value of enterprises through mergers and acquisitions is much faster than the way of single development of the original business,so the capital barbarians have repeatedly appeared.The acquisition defense has a good impact on the barbarians,so it is being pursued by many listed companies.In recent years,anti-merger has a tendency to be overused and thus has a negative effect.The occurrence of an acquisition and anti-acquisition will involve conflicts of interest between multiple levels and multiple entities within and outside the target company.How to deal with these conflicts of interest in law and seek a balance point in the sawing of all parties is a very artistic issue.At present,there are no clear regulations on the related issues of anti-M&A decision in China,whether it is the "Company Law",the "Securities Law" or the relatively new "Administrative Measures for the Acquisition of Listed Companies".In the process of anti-M&A practice,it is often the case that the board of directors oversteps the right to conduct anti-M&A damage to the interests of minority shareholders.In this paper,the author starts with the current situation of anti-M&A in China,and refers to the domestic and foreign legal regulations and cases,in order to provide constructive opinions on perfecting China's acquisition and defense laws.This paper mainly focuses on the justification of anti-M&A of listed companies,from the subjective purpose of anti-M&A,the main body of anti-M&A,and the measures ofanti-M&A.On the one hand,it encourages listed companies to use anti-merger measures to protect their rights.On the other hand,it refutes some excuses from the abuse of anti-M&A by the company's board of directors from the perspective of legal relations,in order to justify the anti-M&A activities of listed companies.This paper is divided into the following parts: The first part introduces the rule review of the anti-M&A decision-making system,introduces the current theory of the anti-M&A existence in China,and analyzes the legislation of China's anti-M&A decision-making system since its establishment.On this basis,it analyzes the main problems existing in China's anti-M&A decision-making system.The second part is about the practical dilemma of the anti-M&A decision-making system.The author tries to find out the main controversial focus of the anti-M&A decision-making system in practice through some data and cases of anti-M&A decisions over the years.The third part is the author's legislation and practice of anti-merger decision-making system in the extra-territorial market by consulting relevant materials,in order to learn from the effective governance experience outside the domain.The fourth part is about the idea and suggestion of perfecting China's anti-M&A decision-making system.The first chapter is to clarify the theoretical controversy about the anti-M&A decision-making system.Firstly,it introduces the theory of various parties on the anti-M&A decision-making system,mainly including the decision-making mode of the shareholders' meeting,the decision-making mode of the board of directors,and the compromise mode of the former two.And focus on the cross-contrast of various theories.Then it sorts out the legislative structure of China's anti-M&A decision-making system and reviews the development of China's legislative system on anti-M&A decision-making.And analyze the legislative status quo of this system,through the analysis between the law,and the "Company Law" "Securities Law" and "Listed Companies Acquisition Management Measures" on the comparative analysis of this anti-M&A decision-making system,found that At the legislative level,there is a logical conflict between the front and the back of this system in China,and the legal provisions themselves are not well-related.The second chapter is to analyze the practical dilemma of the anti-M&Adecision-making system.This chapter is divided into two parts.The first part is to analyze the implementation status of the anti-M&A decision-making system from the perspective of positivism.The main research method is through the comparison of data and case analysis over the years.At the same time,the typical cases related to the subject,such as the Jingji v.Kangdal case and the Shanghai Xinmei case,are reviewed.Therefore,the main controversy focus of the anti-M&A decision-making system in practice is found.For example,(1)The target company faces the offensive of the acquirer,and the board of directors of the target company often instinctively adopts anti-merger measures to increase the cost of the transaction and cause the capital mobility of the M&A market to decline.(2)When the target company adopts M&A measures,the board of directors intends to avoid the regulation of Article 33 of the Measures for the Administration of the Acquisition of Listed Companies and steal the decision-making power originally belonging to the shareholders' meeting.(3)At present,China's court system has not accumulated experience in dealing with such litigation,resulting in the "controversy over decision-making power" cannot be effectively resolved.The rights and interests of the company's minority shareholders cannot be effectively and reasonably protected.The third chapter is to compare and analyze the relevant regulations of the anti-M&A decision-making system in extraterritorial countries.The author sorts out the regulations of the United States,the United Kingdom,and Taiwan on this system,and focuses on analyzing the reasons for the above-mentioned arrangements for anti-M&A decision-making power.And the legal liability for breach of this system.Comparing the analysis with the anti-M&A decision-making system in China,it is concluded that the extraterritorial countries can learn from the legislative system and relevant institutional arrangements for the improvement of China's anti-M&A decision-making system.The fourth chapter is the conception and suggestion of perfecting the anti-M&A decision-making system.Through the previous article,it summarizes and summarizes the problems of China's current anti-M&A decision-making system in legislation and practice,and puts forward feasible and relevant suggestions based on China's judicialpractice.The first part supports China's shareholder decision-making as the core model,clearly stipulating that the shareholders' meeting has the decision-making power of anti-acquisition.The author suggests that the law clearly stipulates that the general meeting of shareholders has the decision-making power of the listed company to reverse the acquisition.Solve the current law's regulation of anti-M&A decision-making power and express unclear problems.The second part is to propose specific measures to improve the anti-M&A decision-making system,such as improving the procedures for anti-M&A of shareholders' meetings;improving the disclosure obligations of anti-M&A decision-making procedures;clarifying the duty of care and diligence of the board of directors;and improving the legal responsibility of anti-M&A decision-making system and many more.