关于中韩公司并购法律限制性规则比较研究

发布时间：2018-07-10 11:36

本文选题：中韩 + 公司并购　；参考：《复旦大学》2011年硕士论文

【摘要】：中国自1978年改革开放,1993年走上社会主义市场经济道路以来,目前已经成长为世界第二经济大国,中国企业通过不断推进跨国并购,在世界并购舞台上已经逐渐成为主角。韩国从1997年金融危机以后,放松企业并购方面的各种规制,公司并购进展也较为迅速。在此过程中,许多外资公司和投机资本并购韩国企业,同时也发生了国富流失的问题。中韩两国,自1992年建交以来在政治、经济、文化等各个领域的交流与合作取得了令人可喜的成果。目前,中国已成为韩国的首位投资国家和贸易国家,韩国也成为中国的第三位贸易伙伴,并且两国正致力于双边贸易区磋商。在此潮流下,今后两国公司之间的并购也会迅猛增加。因此研究分析中韩公司并购法律规范的限制性规制,具有较大的现实意义和实用价值。在中韩公司并购法律规范上,对于公司并购法律行为的限制性规制的核心问题包括：针对收购人的收购行为进行的持股权益披露制度与要约收购制度、针对收购人的要约收购行为而目标公司所采取的反收购措施规制、针对外资并购进行的限制性规制与国家安全审查制度、对因公司并购而发生的经营者集中规制等。对于这些限制性规制,中韩两国均借鉴美国、欧洲和日本等发达国家的法律,在规制的内容和结构上,其规制的核心内容大致一致。但是,在法律的细致内容和具体适用程序上,因两国的法律背景与经济状况的不同而存在一些差异。从整体并购法律的框架和内容来看,中国相关法律规范在各个层次上都比较丰富,政府对公司并购行为进行比较严格的监管。韩国则没有专门规制公司并购的单独法律；对要约收购的规制不利于确保交易的稳定性以及保护中小股东的利益；在反收购规制方面,有关并购法律对反收购的价值取向、滥用问题以及具体反收购措施的适用问题均没有明文规定；对经营者集中的规制难以确保经营者集中当事公司交易的稳定性以及审查的正确性。对此,中韩两国均需要以自律规定形式制定《公司并购指南》,供企业的并购业务和司法机构的审理并购案件参考,随时反映在实践中的各种并购问题。在韩国要约收购规范方面,为了保护中小股东和投资者的合法权益,需要借鉴在中国要约收购规制法律上的事前申报制度和专家聘请制度。在反收购措施方面,两国均需要明确规定反收购措施决策权,并且为了防止敌意收购,需要考虑进行毒丸计划的合法化。在经营者集中审查方面,与中国、美国、欧盟一样,韩国需要采取事前申报制度和两阶段审查制度,以确保经营者集中当事公司交易的稳定性以及审查的正确性。本文从实践的角度出发,以现行的中韩并购法律和政策为基础,就两国公司并购法律的限制性规制进行综合分析,并通过上述分析找出中韩公司并购法律制度和实践上的不同之处及彼此可以借鉴的要素,从而使两国公司并购制度在立法和实践上更加趋于完善。本文共分为五章：第一章,分析了中韩公司并购法律规范的基础,并提出了两国公司并购法律规范的核心问题。具体阐述了中韩公司并购法律框架和特点,提出了两国公司并购法律规范的限制性规制的核心问题。第二章,研究分析了对收购人的收购行为的限制性规制。重点分析了中韩持股权益披露制度和要约收购制度的具体内容,并对两国相关制度进行了比较。第三章,研究分析了在公司收购中反收购措施限制性规制。具体阐述了反收购立法模式与价值取向,重点分析了主要反收购措施的内容以及中韩两国在法律和实践上的适用,并对两国反收购措施适用状况进行了比较。第四章,研究分析了经营者集中审查制度。具体阐述了中韩经营者集中审查制度的具体程序和内容,并对两国经营者集中审查制度进行了比较。第五章,阐述了中韩两国公司并购法律限制性规制的问题,并对完善两国并购法律规制提出了建议。
[Abstract]:Since the reform and opening up in 1978 and the road to the socialist market economy in 1993, China has now grown into the world's second economic power. Chinese enterprises have gradually become the leading role in the world's merger and acquisition stage through continuous promotion of transnational mergers and acquisitions. Since the financial crisis of 1997, Korea has relaxed the various rules and regulations on merger and acquisition of enterprises. Mergers and acquisitions are also progresses more rapidly. In the process, many foreign companies and speculative capital buy and sell Korean enterprises, and at the same time, the problem of wealth loss has also occurred.
Since the establishment of diplomatic relations in 1992, China and South Korea have made remarkable achievements in exchanges and cooperation in various fields, such as political, economic and cultural. At present, China has become the first investment country and trade country of Korea, and Korea has also become the third trading partner of China, and the two countries are working on bilateral trade zone consultations. The merger and acquisition between the two companies in the two countries will also increase rapidly. Therefore, it is of great practical significance and practical value to study and analyze the restrictive regulation of the legal norms of mergers and acquisitions between China and South Korea.
On the legal norms of merger and acquisition of China and South Korea, the core issues of restrictive regulation for the legal behavior of merger and acquisition include: the disclosure system of shareholding rights and the offer system for the acquisition of the acquirer, the regulation of the anti takeover measures taken by the Target Corp for the takeover behavior of the purchaser and the merger and acquisition of foreign capital The restrictive regulation and the national security review system, and the centralized regulation of the operators due to the merger and acquisition of the company. For these restrictive regulations, both China and South Korea draw on the laws of the developed countries such as the United States, Europe and Japan, and the core contents of the regulation are roughly the same. However, the law is meticulous. There are some differences between the legal background and the economic conditions of the two countries.
According to the framework and content of the overall merger and Acquisition Law, the relevant legal norms of China are abundant at all levels. The government has strict supervision over the merger and acquisition behavior of the company. There is no separate law for the merger and acquisition of the regulated company in Korea; the regulation of the offer of the offer is not conducive to ensuring the stability of the transaction and the protection of the small and medium shareholders. In the respect of anti takeover regulation, there are no explicit provisions concerning the value orientation of anti takeover, the problem of abuse and the application of specific anti takeover measures, and it is difficult to ensure the stability of the business of the concentration of the operators and the correctness of the review.
In this regard, both China and South Korea need to formulate the "guide to merger and acquisition" in the form of self-discipline, for the merger and acquisition of enterprises and the judicial institutions to hear the merger and acquisition cases, at any time reflecting the various mergers and acquisitions in practice. In order to protect the legitimate rights and interests of small and medium shareholders and investors, it is necessary to draw lessons from China. In the anti takeover measures, both countries need to specify the right to make decisions on anti takeover measures. In order to prevent hostile takeover, it is necessary to consider the legalization of the drug pill plan. In the field of centralized review of operators, South Korea, like China, the United States and the European Union, needs to take it. The pre declaration system and the two stage review system are to ensure the stability of the transactions and the correctness of the examination.
On the basis of the current Sino Korean merger and acquisition laws and policies, this paper makes a comprehensive analysis on the restrictive regulation of the merger and acquisition laws of the two countries, and finds out the differences in the legal system and practice of merger and acquisition between China and South Korea by the above analysis and the elements that can be used for reference, so that the merger and acquisition system of the two countries will be established. The law and practice are more perfect. This article is divided into five chapters:
In the first chapter, the foundation of the legal norms of merger and acquisition between China and South Korea is analyzed, and the core issues of the legal norms of merger and acquisition of the two countries are put forward. The legal framework and characteristics of the merger and acquisition of China and South Korea are elaborated, and the core issues of the restrictive regulation of the legal norms of the merger and acquisition of the two countries are put forward.
In the second chapter, the restrictive regulation of the acquisition behavior of the purchaser is studied and analyzed. The specific contents of the system of disclosure of the shareholding rights and the tender offer system of China and South Korea are emphatically analyzed, and the related systems of the two countries are compared.
In the third chapter, the restrictive regulation of anti takeover measures in the company's acquisition is studied and analyzed. The legislative model and value orientation of the anti takeover are elaborated, the contents of the main anti takeover measures and the application of the two countries in the law and practice are emphatically analyzed, and the application of the anti takeover measures between the two countries is compared.
In the fourth chapter, the system of centralized censorship is studied and analyzed. The specific procedures and contents of the centralized censorship system between China and South Korea are elaborated, and the centralized review system of the two countries is compared.
The fifth chapter expounds the restrictive regulation of corporate mergers and acquisitions in China and South Korea, and puts forward suggestions for improving the legal regulation of mergers and acquisitions between the two countries.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.29;D922.28;D931.26

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