Typological Analysis Of Anti-takeover Provisions In The Articles Of Association Of Listed Companies

Since 2009,with the continuous development of China's market economy,the acquisition and anti-acquisition behavior is also increasing,with the end of the "Bao Wan" dispute,more and more listed companies in the charter to add antiacquisition provisions.At present,China has not promulgated a specific law to regulate the content of the articles of association of listed companies against acquisition,only a few scattered provisions scattered in various legal documents,including the Company Law,the Securities Law and the "Measures for the Administration of Acquisitions of Listed Companies" and so on.These contents are too dispersed,lack of systematic and uniform,and the relevant provisions are too principled,more abstract,and do not further clarify the corresponding punishment measures.Due to the lack of strict norms of law,coupled with some directors to safeguard their own interests as a starting point,resulting in the practice of anti-acquisition provisions of the subjectivity and arbitrariness is too strong,and even with the "Company Law" and other legal documents of the legislative spirit,making the legality of anti-acquisition clauses questionable.So,what is the attitude of the company law towards the formulation of anti-acquisition clauses in the articles of association? Is it necessary to set up anti-acquisition clauses in the articles of association? How can the legality and operability of the anti-acquisition clausebes be discerned? First of all,this paper takes "Bao Wan's dispute" as the starting point,briefly describes the current situation,existing problems and the positive utility of antiacquisition clauses in China,puts forward a preliminary understanding of the legal theory of anti-acquisition,and uses the method of inductive research and literature analysis.In the course of doing the literature review,the author found that more listed companies were in 2015-2017 to modify or increase the charter anti-acquisition provisions,to the second half of 2016 the most.In doing literature review,it is found that several listed companies are often mentioned by scholars,for this,first of all,can directly search the name of listed companies in the tide information network,to find its revised charter.Furthermore,the author through the giant tide of information on the announcement search,limited date from June 1,2015 to January 1,2017,the keyword input "constitution" that led to a lot of listed companies to amend the charter.Then look at the content sits whether there are anti-acquisition provisions,and finally found that Yahua Group(0002497),China Bao'an(000009),World Union Bank(002285),Huashen Group(000790),Shandong Jintai(600385),Jinlu Group(000510),Yi Lilian(000510),Yi Lilian(0000510)002601),Longping Gaoke(000998),Yili shares(600887),Polyfluodo(002407),Hebei Xuangong(000923),American Electrical(000527),3D Silk(300056),Guangyu Group(002133),Jinzhou Port(600190),Twenty listed companies,including Shang-Win Global(600146),Xinhua Media(600825)and Fangzheng Technology(600601),have added or amended anti-acquisition provisions in their articles of association.Finally,six types of more common types of charter antiacquisition clauses were obtained.At the same time,empirical research methods and methods of interpretation are used.The author through the major economic networks,newspapers and magazines searched a large number of representative anti-acquisition cases and the application of the articles of association anti-acquisition provisions,by the China Securities Small and Medium Investment Service Center sent inquiries of the case,to study the legitimacy of the issue.At the same time,also in the tide information network,Wind database to retrieve data,to the aforementioned 20 listed companies charter sedited as a sample,to find out which with six common types of common types of anti-acquisition provisions consistent with the statistics of six types of charter antiacquisition clause utilization ratio.The analysis found that among the 20 listed companies,the use rate of the tiered board of directors accounted for up to 21% of the total,the restriction of shareholders' rights and the increase of shareholder obligations accounted for 20%,and the proportion of the general authorized board of directors to implement the anti-acquisition clause was the lowest,at only 10%.Several listed companies use anti-acquisition clauses in a combination manner,such as the use of phased board terms often accompanied by absolute majority provisions.Finally,the legality and operability of these six types of anti-acquisition clauses are analyzed,in the course of analysis,the existing laws and regulations of our country are compared with the interpretation and elaboration of the legal provisions,which involves the interpretation of meaning,the interpretation of purpose,the interpretation of the system and so on.The inadequacy of this paper is that there is no clear law in our country to regulate the anti-acquisition clause of the articles of association,and then judge the understanding of legality,only through the determination of the mandatory provisions of effectiveness to make a preliminary judgment.The academic community's understanding of the six articles is divided,there is no clear legal provisions,so it is difficult to play a practical role in practice.In this paper,only 20 listed companies as a sample of analysis,the conclusion is one-sided.But the significance of this study lies in the fact that few scholars have explored in depth the legality and operability of the anti-acquisition clause of the charter.Anti-acquisition clauses are numerous,but in practice can be directly applied with its reference significance less.Although the discussion of this paper is not deep enough,but face the practical problems may be faced,but also put forward their own views on this.Moreover,how to determine the legality of the anti-acquisition clause of the articles of association? First,we have to judge whether the articles of association can freely set up anti-acquisition clauses,and where is its legal boundaries.China's 2009 Contract Law,a number of issues interpretation(ii)to distinguish the mandatory norms as effective and managerial,only violation of effectiveness will lead to invalidity.In analyzing the legality of the anti-acquisition clause of the articles of association,we must first look at whether the laws and administrative regulations are violated,and if the laws and administrative regulations are violated,we will judge whether the administrative or effective provisions of the violation are violated.Violations of the validity provisions are illegal and do not require discussion of their operability.There are other exceptions that,even if they violate laws and administrative regulations,and continue to be implemented that would harm the national interest and social interests,should be considered a violation of the provisions of validity.However,in the process of concrete analysis,we should compare with laws and regulations,for the vague and legal loopholes,to be consistent with the original intent and spirit of the legislation,and can not harm the interests of small and medium-sized shareholders and the interests of the company.In the end,the author concludes that the provisions that deprive and limit shareholders' right to nominate directors limit the time of shareholders' holdings,the provisions of the hierarchical board of directors system,the reasonable restriction clauses on eligibility in the limits of directors' qualifications,the golden parachute clause and the general meeting of shareholders,The absolute majority clause of the board's rules of procedure,etc.,is legitimate and operable if the design is reasonable.In the three cases of depriving and restricting the shareholders' right to nominate directors,restricting the shareholding ratio,depriving the shareholders' nomination right not disclosed in accordance with the articles of association,and restricting the directors of the company from being nominated by the board of directors only,restricting the power of the shareholders' provisional proposal and convening the shareholders' meeting,and aggravating the obligation of the shareholders to disclose the information of the shareholders' shareholdings,Restricting the voting rights clause softerment of non-compliant shareholders,the limitation of the procedure in the term of the limit of the qualification of directors and the general authorization of the board of directors to implement the anti-acquisition measures clause are not legitimate,so there is no operational problem.The analysis shows that the anti-acquisition clause of the articles of association with legality also has its operability in general,but it is necessary to pay attention to how to set up reasonably and not to harm the legitimate rights and interests of small and medium-sized shareholders.To sum up,this paper takes the type analysis of the anti-acquisition clause of the charter as the main line,uses different research methods to analyze,and finally comes up with several anti-acquisition clauses with legality and more practical,which have reference significance.The introduction and analysis of this paper is difficult to have comprehensive and one-sided,but I hope to give other scholars a certain reference role.For the listed company's charter to set anti-acquisition clause involved a large number of interest subjects,complex diversification,China's anti-acquisition in the immature legal regulation,so that many problems are to be further improved in future research.And how to resolve the moral hazard of malicious acquisition from the policy level,so as to encourage and standardize,cultivate and prevent risk,is a problem worthy of deep discussion.