我国上市公司反收购策略类型及合法性研究

发布时间：2018-03-21 03:46

本文选题：上市公司　切入点：反收购策略　出处：《吉林大学》2017年硕士论文　论文类型：学位论文

【摘要】：资本市场中,涉及上市公司之间的敌意收购与反敌意收购时有出现,持续已有一年半之久的宝万股权之争如何落幕尚未可知。所有沪深两市上市公司的股东、管理层都从这一堂敌意收购与反收购公开课中深深受教,尤其是宝能系向万科股东大会提交罢免万科董事会议案一幕让人记忆有新,也让“门口的野蛮人”这个词广为人知。董事会为避免公司被敌意收购后自己就被新股东罢免,接二连三地通过修改公司章程采取反收购策略,意图通过在公司章程中采取各种类型的反收购策略,以达到防御“门口的野蛮人”的目的。本论文通过对宝万股权之争这一经典案例发生后2016年度我国上市公司通过修改公司章程采取反收购策略的所有案例进行分析和归纳总结,介绍了中国上市的公司所采取的较为常用的防御敌意收购的反收购策略的类型,分析了在我国法律环境和监管背景下为防御“门口的野蛮人”的敌意收购而采取的各种类型的反收购策略的合法合规性,进而试图为确保上市公司在公司治理中能够合法合规地采取反收购策略提供规则建议。本文首先详细地介绍了毒丸计划策略、分期分级董事会制度策略等我国上市公司较常采取的反收购策略的基本内涵,以及介绍了在2016年度采取了前述类型的反收购策略的沪深两市的部分上市公司案例,并对上市公司就各类反收购策略是如何具体运用的作了详细论述。本文其次从我国现行法律规定层面分别讨论了我国上市公司所采取的各类反收购策略的合法性,分析了我国现行法律规定关于章程中采取的各种类型的反收购策略的合法性。本文紧接着就证监会、上交所、深交所等实务监管部门依职权对上市公司的收购活动进行监管时涉及各种类型的反收购策略的监管进行了论述,证监会、上交所、深交所按照《公司法》、《上市公司收购管理办法》等有关法律规定和从维护公司利益及股东利益角度出发,对各类反收购策略是否合法进行监管,未违反《公司法》、《上市公司收购管理办法》等有关法律规定的反收购策略,上市公司可以在章程中采取用来防御敌意收购;违反《公司法》、《上市公司收购管理办法》等有关法律规定的反收购策略则不得采取。本文最后根据我国现行法律规定以及证监会、上交所、深交所的监管要求关于各类反收购策略合法性的态度,为确保上市公司在章程中采取各类反收购策略能够具备合法性提供了规则建议。市场化经济理应是法治化经济,本论文的研究意义在于为上市公司在采取反收购策略防御敌意收购时能够具有合法合规性提供规则建议,从而有利于促进我国上市公司治理的法治化。
[Abstract]:In the capital market, hostile and anti-hostile takeovers involving listed companies have occurred from time to time. It is not clear how the dispute over the shares of Baowan, which has been going on for over a year and a half, will end. All shareholders of listed companies in the Shanghai and Shenzhen stock markets, Management has been deeply taught in this open course on hostile takeovers and anti-takeover, especially when Baoneng submitted a motion to remove Vanke's board of directors at a general meeting of Vanke shareholders. The term "barbarians at the door" is also widely known. The board of directors, in an effort to avoid being ousted by new shareholders after a hostile takeover, has repeatedly adopted an anti-takeover strategy by modifying the company's articles of association. Intent on adopting various types of anti-takeover strategies in the articles of association, In order to achieve the goal of defending the "barbarians at the door", this paper analyzes and summarizes all cases of anti-takeover strategy adopted by Chinese listed companies by modifying their articles of association in 2016 after the classic case of the dispute over the ownership of Baowan. This paper introduces the types of anti-takeover strategies used by Chinese listed companies to defend against hostile takeover. This paper analyzes the legal compliance of various types of anti-takeover strategies adopted to defend the hostile takeover of the "barbarians at the door" under the legal environment and regulatory background of our country. In order to ensure that the listed company can legally adopt the anti-takeover strategy in corporate governance, this paper first introduces the poison pill planning strategy in detail. The basic connotation of the anti-takeover strategy adopted by listed companies in China, such as the strategy of staged and graded board of directors, and the cases of some listed companies in Shanghai and Shenzhen stock markets that adopted the aforementioned anti-takeover strategy in 2016 are introduced. Then, this paper discusses the legality of all kinds of anti-takeover strategies adopted by listed companies from the aspects of the current laws and regulations of our country. This paper analyzes the legality of the various types of anti-takeover strategies adopted in the articles of association as stipulated in the current laws of our country. The Shenzhen Stock Exchange and other practical regulatory authorities have discussed the supervision of various types of anti-takeover strategies when regulating the acquisition activities of listed companies according to their functions. The Securities Regulatory Commission, the Shanghai Stock Exchange, The Shenzhen Stock Exchange, in accordance with the relevant laws and regulations such as the Company Law, the measures for the Management of acquisitions of listed companies, and from the perspective of safeguarding the interests of the company and the interests of the shareholders, supervises the legality of various anti-takeover strategies. Without violating the anti-takeover strategies stipulated by relevant laws such as the Company Law and the measures for the Administration of takeover of listed companies, the listed companies may use the articles of association to defend against hostile takeovers; The anti-takeover strategy in violation of "Company Law" and "measures for the Administration of takeover of listed companies" and other relevant laws shall not be adopted. Finally, according to the existing laws and regulations of our country and the Securities Regulatory Commission and the Shanghai Stock Exchange, The Shenzhen Stock Exchange's supervision requires an attitude on the legality of various anti-takeover strategies, which provides rules for ensuring that listed companies can adopt various anti-takeover strategies in their articles of association. The market-oriented economy is supposed to be a legalized economy. The research significance of this thesis is to provide rules and suggestions for the listed companies to adopt anti-takeover strategy to defend hostile takeover, and to promote the rule of law of listed companies in China.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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