Research On The Protection Of The Rights And Interests Of The Small And Medium Shareholders Of The M＆a Party In The M＆A Of Listed Companies

"Small and Medium Shareholders" of a listed company refers to the shareholders of the company who hold a small proportion of the shares of the listed company and do not take part in the decisions of the company or have no significant affection on the determination of the company.According to the theory of the company Law,the relevant interests of the minority shareholders of the acquirer can be generally divided into two forms: self-interest right and joint interest right.The core of protecting the legitimate rights and interests of minority shareholders in the acquirer consist in:realizing the worth objective of corporate system,perfecting the internal governance mechanism of listed and maintaining the stable operation and fitness development of principal market.In the front of the protection needs of the minority shareholders of the M＆A because of the misuse of controlling rights,and the special protection needs of the rights and interests existing from the M＆A transactions,the state should reinforce the protection of the rights and interests of the minority shareholders of the M＆A in the listed companies through legislation.With the adding frequent fusion and purchase events of listed companies in Chinese principal market,the protection of the rights and interests of small and medium shareholders,especially those of the cooperating parties,in the procedure of fusion and purchase of listed companies has become a vital issue that needs to be solved urgently.Facing of the corporate governance model of principal majority regulation,the controlling shareholders of listed companies may misuse their controlling rights to merge upon the legitimate rights and interests of small and medium shareholders in the procedure of listed companies’ fusion and purchase based on the pursuit of private interests.Such as non-performance of massage disclosure obligations,appropriation of minority shareholders’ funds by way of related party transactions and other means,and purchase of controlling interests under the guise of fusions and purchases,etc.At the same time,because of the particularity of the listed company’s fusion and purchase,the legitimate rights and interests of the minority shareholders of the merging party may also be specially infringed by the fusion and purchase in different forms of investment.For example,cash M＆A results in the infringement of immediate cash burden,stock exchange M＆A results in the infringement of diluted shareholders’ rights and interests,and leveraged M＆A results in the infringement of excessive uncertainties,etc.Based on this,the protection needs of minority shareholders in fusions and purchases of listed companies can not be ignored.However,in practice,most of the M＆A events of listed companies in our country are implemented by issuing shares to purchase assets.Therefore,this M＆A behavior will often cause changes in the company’s equity structure.The change of ownership structure forced the minority shareholders of the acquirer to reduce their shareholding.Therefore,whether it is based on the worth per share and the dimension of shares held to exercise the right to claim for dividend distribution,or the voting rights and the right to initiate representative lawsuits closely related to the dimension of shares held,the rights and interests of minority shareholders in the acquirer will be infringed to a certain extent because of the fusion and purchase of listed companies.There are many reasons that cause the listed company’s M＆A behavior to infringe the rights and interests of minority shareholders of the acquirer.There are chiefly the following three points: First of one,the massage disclosure system in the securities market is not perfect.The massage disclosure system of listed companies in China before and during fusions and purchases is in a blank state,and the existing legal provisions of the massage disclosure system are difficult to be universally applied in practice because of the unclear legislation.On the other hand,there is a problem in the regulatory system.In the top environment and management system of Chinese M＆A market,problems still exist,for instance the improper coordination of inter-agency supervision functions in the government supervision system and the ambiguous positioning of the supervision functions of self-regulatory organizations in the self-regulatory system.Because of ineffective supervision,listed companies are likely to fail because of blind fusions and purchases,thus endangering the interests of minority shareholders of the merging parties.Thirdly,the approaches of rights relief for the protection of shareholders’ rights and interests are tough.The appearance is that the rights and interests protection system of minority shareholders in the acquirer,the rights and interests relief system such as the shareholders’ lawsuit system and the securities representative lawsuit system,cannot function properly.Thus,even if the legitimate rights and interests of the minority shareholders of the acquirer are infringed in the procedure of fusion and purchase of listed companies,it is difficult for them to get effective relief afterwards by asserting of the existing rights and interests relief system.Therefore,in order to lead a nice way to protect the rights and interests of the minority shareholders in the M＆A of listed companies,we must improve the relevant massage disclosure system,build a diversified supervision and management system and improve the relevant shareholders’ rights relief system as soon as possible.The specific methods include the following three aspects: Firstly,to improve the relevant massage disclosure system by reinforcing legislation,improving the pre-event disclosure requirements of fusion and purchase massage,and illustrating the existing disclosure requirements of fusion and purchase massage,so as to promise that listed companies can reveal relevant fusion and purchase massage to small and medium shareholders of the M＆A party in a comprehensive,timely and accurate manner.Second,by reinforcing the regulatory functions of government agencies and self-regulatory organizations and playing the regulatory role of an independent third party,we can provide diversified and all-round regulatory systems to safeguard the legitimate rights and interests of small and medium shareholders in the procedure of fusions and purchases of listed companies.In our country is currently implementing a regulatory model in which government regulation and self-discipline regulation work together,we should focus on reinforcing the regulatory functions of government agencies and self-discipline organizations,chiefly including reinforcing the regulatory cooperation among various government regulatory agencies,illustrating the regulatory function of self-discipline organizations,and improving and implementing the existing follow-up disciplinary mechanism for regulation.Finally,by reinforcing the maneuverability of the system of the dissenting shareholder’s share repurchase claim,reinforcing the actionability of the shareholder’s litigation system and focusing on the influence of "representative" on the securities representative’s litigation system,the existing shareholders’ rights and interests relief system in our country can provide a practical and reliable judicial relief approach for the protection of the rights and interests of small and medium shareholders in the procedure of fusions and purchases of listed companies.