| With the completion of China's share-trading reform,the proportion of the largest shareholder of domestic listed companies has been declining year by year.China's capital market has the ability for listed companies to launch large-scale acquisitions.The Baowan dispute set off a wave of anti-takeovers in second round.The competition of corporate control rights is increasingly fierce,of which the core lies in the competition of seats on the board of directors.This paper focuses on the most representative articles of limiting reelection of directors in the competition of corporate control rights,conducting the legal analysis from the following aspects:Chapter One analyzes the current situation of the articles of limiting reelection of directors in charter of listed companies.Firstly,the basic types of the articles of limiting reelection of directors are: limiting the number of directors to reelection,limiting the qualifications of directors,and limiting the nomination of shareholders.Secondly,the paper examines the practice and application of the articles of limiting reelection of directors: this paper selects the supervision letter from Shanghai Stock Exchange and Shenzhen Stock Exchange about newly setting the articles of limiting reelection of directors in charter after the Baowan dispute.Finally,27 regulatory letters are collected.On the basis of the above,this paper analyzes the reply letter and its corporate governance model and shareholding distribution,and analyzes the reasons for the successful establishment of the articles of limiting reelection ofdirectors in specific listed companies,the focus of the regulatory authorities and regulatory attitudes.In addition,this paper also pays attention to the Continued Supervision Measures of the Listed Company in Science and Technology Innovation Board(Trial)(hereinafter referred to as Continuous Supervision Measures)and the Science and Technology Innovation Board Stock Listing Rules in Shanghai Stock Exchange(hereinafter referred to as the Science and Technology Innovation Board Stock Listing Rules)issued by China Securities Regulatory Commission(hereinafter referred to as CSRC)and the Shanghai Stock Exchange(hereinafter referred to as SSE)on the supervision of the merger and reorganization of listed companies in science and technology innovation board on March 1,2019.And on April 17,CSRC issued the Decision on Amending the Guidelines for Listed Companies' Articles,the revised Guidelines for Listed Companies' Articles(Revised in 2019)(hereinafter referred to as the Guidelines for the Constitution)deletes the require that the shareholders meeting can't dismiss directors position without any reason in 2016 version,and allows the general meeting to dismiss directors before the expiration of the term.On this basis,on April 28,the Supreme People's Court(hereinafter referred to as the Supreme Court)issued the Provisions of the Supreme People's Court on Issues Relating to Application of Company Law of the People's Republic of China [V](hereinafter referred to as Provisions [V]),it is worth noting that Article 3 of the Provisions [V] clarifies that the company and the directors are entrusted with the contract law,and allows that the company's shareholders meeting can dismiss directors at any time,which increases the protection of shareholders' rights and reduces the agency costs.Chapter Two analyzes the legality of the articles of limiting reelection of directors in charter of listed companies.Firstly,limiting the number of directors to reelection.According to the data analysis of the article,the main point of supervision is whether the article unreasonably limits the power of the general meeting.Regarding the legality of the article,this paper believes that the article is not legal in principle,but is legal in the case of anti-takeovers.Secondly,limiting the qualifications of directors.According to the data analysis of the article,the main point of supervision is whether the constraints on the qualifications of directors will damage the rights of the target company and small and medium investors.Regarding the legality of this article,this paper believes that the article is valid as long as it does not violate commercialhabits.Thirdly,limiting the nomination of shareholders.According to the data analysis of the article,the main focus of supervision is limiting the nomination of shareholders,affecting the diligence of management,and the right of major shareholders to nominate more directors.Regarding the legality of this article,this paper believes that the judgment of the legality of the relevant articles limiting the shareholders' nomination right is very complicated,and it is necessary to make comprehensive judgments based on the specific circumstances such as the equity distribution of the target company.On the whole,the judgment of the legality of the three types of articles of limiting reelection of directors depends to a large extent on whether the provisions of specific laws and regulations are mandatory,the boundary determination of the autonomy of the articles of association,and the substantive judgment of the regulators after the choice of legal value.Chapter Three,based on the previous analysis,provides suggestions on the principle of supervision of the articles of limiting reelection of directors in charter of listed companies.In terms of the regulatory concept of articles of limiting reelection of directors,this paper proposes that existence does not mean legal,actual judgment of the company,and commercial behavior law.In terms of institution construction of articles of limiting reelection of directors,the following points should be emphasized:strengthening the supervision of information disclosure obligations,establishing case guidelines for the provisions,amending the Measures for the Administration of the Acquisition of Listed Companies(hereinafter referred to as Acquisition Management Measures)to stipulate articles of limiting reelection of directors,and guiding listed companies to conduct anti-takeover actions reasonably and legally. |
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