Research On The Effect Of Absolute Majority Clause In Articles Of Association

With the new wave of acquisition,the value of anti takeover clause in hostile takeover is becoming increasingly prominent.Defensive clause has great application space and advantages under the legal framework of our country: the absolute majority clause,which aims to improve the voting rate of resolution items and increase the difficulty of acquisition,not only sets obstacles to hostile takeover,plays a defensive role to the target company,but also serves other purposes The application of anti takeover measures plays a protective role and protects other anti takeover measures from arbitrary modification.Finally,the absolute majority of the terms will play a positive role in reducing the success rate of hostile takeover and stabilizing the market order.Based on the advantages of the absolute majority clause,the acquisition market has increasingly favored the application of the clause.However,in practice,the validity of the defensive clause is not unified,and the contradiction of judgment is increasingly prominent.This dilemma hinders the application of the absolute majority clause in anti acquisition.After sorting out the "Davos case" and other related cases,the problem of the inconsistency of effectiveness judgment can be summarized as two major problems: the incomplete basis of effectiveness judgment and the separation of the determination of the passing rate of resolutions from the attribute of legal norms.Therefore,the effectiveness judgment of the absolute majority of clauses needs to change the narrow thinking of judgment,clarify the different levels of effectiveness judgment and the different levels of judgment One.Based on this,the article will be divided into three parts in the structure to sort out and analyze the dilemma of the absolute majority clause validity judgment,and put forward suggestions on the path of validity judgment: the first chapter is the absolute majority clause and its application status.This paper first introduces the surge of China’s acquisition market in recent years.Since the "Baowan dispute",there has been a wave of anti acquisition measures in China,and the application of anti acquisition measures has gradually moved to the center of the stage.Then,in order to better understand the absolute majority of the terms,this paper takes 180 companies of Shanghai main board who revised the articles of association in December 2020 as the data parameters,summarizes and summarizes the terms of different contents,and summarizes the results In this paper,the general form of the content of the absolute majority clause is put forward,and the concept,content,relationship with anti takeover measures and its own unique advantages of the absolute majority clause are deeply understood.Thirdly,the problems existing in the application of the absolute majority clause are explored by combing the cases such as "Miran company case".Finally,the double-layer effect of solving the dilemma is put forward according to the case combing and the summary of dispute focus Force judgment path.The second chapter is the main body and content of the decision of the absolute majority clause.Through the analysis of the nature and application of Articles 43 and 104 of the "Company Law" and the qualitative analysis of the company’s articles of association and reference to relevant experience outside the territory,the three major judgment elements of the decision subject,setting items,and voting pass rate range of the absolute majority clause are determined.The absolute majority of clauses enter into the overall legality judgment.The third chapter is the judgment of the legality of the absolute majority clause.After the judgment of the subject and content requirements is met,it does not mean that the absolute majority of the clauses are valid,because the clauses may contain a series of laws that violate the spirit of legislation,harm the overall interests of the company,harm the legitimate rights and interests of shareholders,and disrupt the market order,etc.Substantial content.Therefore,this chapter is based on the judging standards of the legality of the absolute majority clause in the United Kingdom,the United States and Japan,combined with my country’s "Company Law",the "Securities Law",and the "Measures for the Administration of the Acquisition of Listed Companies" and other legal norms,summarizing my country’s absolute majority clauses.Substantive judgment standard.Hope to provide a reference for its practical application through the study of the effect of the absolute majority clause in the company’s articles of association.