外资在华股权并购法律制度研究

发布时间：2018-04-21 19:42

本文选题：外资 + 股权并购　；参考：《西南政法大学》2011年硕士论文

【摘要】：外资在华股权并购实践由来已久,但股权并购作为外资并购的方式之一,一直没有得到理论上的足够认识及立法上的有效规制。本文在界定股权并购概念的基础上,从股权并购的现实意义出发,阐述与股权并购相关理论问题,在考察股权并购国内立法及实践的同时,借鉴美国相关立法经验,对外资在华股权并购法律制度的完善提出相关建议。全文分为引言、正文、结束语,其中正文分为三个部分: 第一部分是对外资在华股权并购的概述。在界定外资并购概念的基础上,简要介绍了其一般分类,着重分析股权并购与资产并购的分类方式,并对两者的区别与联系进行了比较。然后,对股权并购的概念及其方式,即购买型与增资型进行解析。最后,通过对外资在华股权并购的现状及发展趋势分析指出,股权并购法律制度的不完备是阻碍我国外资并购发展的重要原因之一,从而引出下一部分对股权并购法律制度的现状分析。第二部分是对我国外资在华股权并购法律制度的现状分析。在对我国外资在华股权并购的立法体系的解读和分析基础上,借鉴公私法分类,重点围绕股权并购反垄断审查制度和相关权益人保护制度的法律规定,对我国现行股权并购法律制度进行深入解析。第三部分是我国外资在华股权并购法律制度不足及完善。公法层面上,在《并购规定》体系下,对于股权并购的规定存在着诸多法律冲突。《反垄断法》虽确立了并购审查制度,但其不仅缺少股权并购的专门规定,且在审查机构、标准和程序方面都有缺陷。私法层面上,《公司法》对股权并购没有明确的规定,且在股东权益和债权人权益保护制度方面存在明显缺陷。《合同法》在债权人权益保护制度方面需要进一步完善。针对股权并购的特点,指出应从公法和私法两个层面对股权并购进行相应的完善。在结语中,笔者指出:股权并购的“公法为主,私法为辅”的双重性质决定其需要公法和私法共同调整,认为建立一套以《公司法》、《外资并购法》和《反垄断法》为基本框架的法律体系对外资并购的共性问题予以规范,同时在该体系中设专章对外资在华股权并购的特殊问题予以规范,是比较合理的选择。
[Abstract]:The practice of foreign equity M & A in China has a long history, but as one of the ways of foreign capital M & A, equity M & A has not been recognized enough in theory and effectively regulated in legislation. On the basis of defining the concept of equity merger and acquisition, starting from the practical significance of equity merger and acquisition, this paper expounds the theoretical issues related to equity mergers and acquisitions, and at the same time, it examines the domestic legislation and practice of equity mergers and acquisitions, and draws lessons from the relevant legislative experience of the United States. To improve the legal system of foreign equity mergers and acquisitions in China, put forward relevant suggestions. The full text is divided into three parts: introduction, text and conclusion, in which the text is divided into three parts: The first part is an overview of foreign equity mergers and acquisitions in China. On the basis of defining the concept of foreign capital M & A, this paper briefly introduces its general classification, emphatically analyzes the classification methods of equity M & A and asset M & A, and compares the differences and relations between the two. Then, the paper analyzes the concept and ways of equity M & A, that is, purchase type and capital increase type. Finally, through the analysis of the current situation and development trend of foreign equity M & A in China, it is pointed out that the imperfection of legal system of equity merger and acquisition is one of the important reasons that hinder the development of foreign capital M & A in China. Thus leads to the next part of the legal system of equity mergers and acquisitions analysis of the status quo. The second part is the analysis of the legal system of foreign equity mergers and acquisitions in China. On the basis of the interpretation and analysis of the legislative system of foreign equity mergers and acquisitions in China, the author draws lessons from the classification of public and private laws, and focuses on the legal provisions of the anti-monopoly review system and the related rights and interests protection system of equity mergers and acquisitions. Deeply analyze the current legal system of equity merger and acquisition in China. The third part is that the legal system of foreign capital M & A in China is inadequate and perfect. On the level of public law, there are many conflicts of laws on the regulation of equity merger and acquisition under the system of "M & A". Although the Anti-monopoly Law establishes the system of merger and acquisition review, it not only lacks the special regulation of equity M & A, but also exists in the examining body. Both standards and procedures are flawed. On the level of private law, the Company Law has no clear provisions on equity merger and acquisition, and there are obvious defects in the system of protecting shareholders' rights and interests and creditors' rights and interests, and the system of protection of creditors' rights and interests in < contract Law] needs to be further improved. According to the characteristics of equity mergers and acquisitions, the author points out that equity mergers and acquisitions should be perfected from the two aspects of public law and private law. In the conclusion, the author points out that the dual nature of "public law is dominant, private law is secondary" determines the need for public law and private law to be adjusted together. It is considered that the common problems of foreign capital M & A should be standardized by establishing a set of legal systems with the basic framework of Company Law, Foreign Capital M & A Law and Anti-monopoly Law. At the same time, it is a reasonable choice to set up a special chapter in this system to standardize the special problems of foreign equity mergers and acquisitions in China.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.29

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