“毒丸计划”规制研究
发布时间：2018-10-25 20:24
【摘要】：毒丸计划是反收购措施中最灵活高效的一种,也是被收购公司很容易采用的一种。它的突出作用表现在对敌意收购具有强大的威慑力,反收购成功率高,能够较好地防止公司控制权转移,保护公司和股东利益。但毒丸计划与其他反收购措施一样具有两面性,只有受到合理地规制,其存在价值才能得以体现,成为维护被收购公司和股东利益的最佳武器,为公司的持续稳健长远发展保驾护航。 值得注意的是,毒丸计划自产生以来就倍受争议,甚至因其涉嫌与公司法同股同权原则相冲突而被一些国家禁止。我国立法对其态度也模糊不清。所以,毒丸计划在我国的使用是否合法以及毒丸计划究竟该如何规制,仍然没有明确的法律依据可循。 本文的研究目的就在于讨论毒丸计划存在的价值以及对我国毒丸计划的规制进行立法思考。本文通过案例分析、国外经验评析及归纳总结的方法对毒丸计划规制问题做了较为全面的分析,以期对我国未来反收购措施立法有所帮助。 本文的主要内容包括四个部分。 第一部分为上市公司反收购措施与毒丸计划的概述。该部分引出毒丸计划这一研究对象,介绍其常见种类,通过与其他反收购措施相比较的方法分析其实施自主迅速、反收购成功率高、能更好地保护公司及股东利益的优势,并从股份平等、公司内部治理及公司外部监督效应等相关理论角度指出其弊端。 第二部分为我国毒丸计划的实践状况及反收购措施的立法现状。该部分通过案例分析的方法指出我国毒丸计划在实践中存在的问题,而后结合分析我国反收购措施的立法现状,得出了我国反收购实践亟需得到法律的指引,包括毒丸计划在内的诸多反收购措施需要法律予以认可和规制的结论。 第三部分为国外关于毒丸计划规制的可借鉴经验。该部分通过对美国及欧洲部分国家和地区的立法现状及原因的分析,得出对我国毒丸计划规制的立法启示,即对毒丸计划的立法态度应为允许其在特定条件下合法存在,但必须严格限制其使用,并确立一系列配套制度加以规制。 第四部分为对我国毒丸计划规制的立法思考。该部分在进一步阐述毒丸计划在我国的必要性与可行性问题的基础上,提出对毒丸计划规制的具体设计,包括确定毒丸计划使用范围、确定提议权及决策权归属以及确立个案审查标准。
[Abstract]:Poison pill plans are the most flexible and efficient anti-takeover measures, and are easily adopted by acquired companies. Its outstanding function is that it has a powerful deterrent to hostile takeover and has a high success rate of anti-takeover, which can prevent the transfer of corporate control and protect the interests of the company and shareholders. However, the poison pill plan, like other anti-takeover measures, has two sides. Only if it is properly regulated, can its existence value be reflected and become the best weapon to safeguard the interests of the acquired companies and shareholders. For the company's continued steady and long-term development to protect. It is worth noting that the poison pill plan has been controversial since its birth, and has even been banned by some countries for its alleged conflict with the principle of the same shares and rights in the Company Law. Our legislative attitude towards it is also ambiguous. Therefore, there is still no clear legal basis for the use of poison pill plan in our country and how to regulate it. The purpose of this paper is to discuss the value of poison pill plan and to legislate the regulation of poison pill plan in China. This paper makes a comprehensive analysis of the planning regulation of poison pills through case analysis, foreign experience analysis and summary, in order to help our country to legislate future anti-takeover measures. The main content of this paper includes four parts. The first part is the outline of anti-takeover measures and poison pill plan of listed companies. This part leads to the poison pill plan as a research object, introduces its common types, analyzes its advantages of rapid implementation and high success rate of anti-takeover by comparing with other anti-takeover measures, which can better protect the interests of the company and its shareholders. It also points out its disadvantages from the angle of equity equality, corporate internal governance and external supervision effect. The second part is the practice of poison pill plan and the legislative status of anti-takeover measures. This part points out the problems existing in the practice of poison pill plan through the method of case analysis, and then analyzes the legislative status of anti-takeover measures in our country, and concludes that the practice of anti-takeover in our country needs to be guided by law. Many anti-takeover measures including poison pill plan need to be recognized and regulated by law. The third part is the experience of foreign countries about poison pill planning regulation. Based on the analysis of the current legislative situation and reasons of the United States and some European countries and regions, this part draws the legislative enlightenment to the regulation of poison pill plan in our country, that is, the legislative attitude to the poison pill plan should be allowed to exist legally under certain conditions. However, it is necessary to strictly restrict its use and establish a series of supporting systems to regulate it. The fourth part is the legislative thinking on the planning regulation of poison pill in China. On the basis of further expounding the necessity and feasibility of poison pill plan in our country, this part puts forward the concrete design of poison pill plan regulation, including determining the scope of poison pill plan use. Determine the ownership of proposals and decision-making powers and establish case review criteria.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：F271
[Abstract]:Poison pill plans are the most flexible and efficient anti-takeover measures, and are easily adopted by acquired companies. Its outstanding function is that it has a powerful deterrent to hostile takeover and has a high success rate of anti-takeover, which can prevent the transfer of corporate control and protect the interests of the company and shareholders. However, the poison pill plan, like other anti-takeover measures, has two sides. Only if it is properly regulated, can its existence value be reflected and become the best weapon to safeguard the interests of the acquired companies and shareholders. For the company's continued steady and long-term development to protect. It is worth noting that the poison pill plan has been controversial since its birth, and has even been banned by some countries for its alleged conflict with the principle of the same shares and rights in the Company Law. Our legislative attitude towards it is also ambiguous. Therefore, there is still no clear legal basis for the use of poison pill plan in our country and how to regulate it. The purpose of this paper is to discuss the value of poison pill plan and to legislate the regulation of poison pill plan in China. This paper makes a comprehensive analysis of the planning regulation of poison pills through case analysis, foreign experience analysis and summary, in order to help our country to legislate future anti-takeover measures. The main content of this paper includes four parts. The first part is the outline of anti-takeover measures and poison pill plan of listed companies. This part leads to the poison pill plan as a research object, introduces its common types, analyzes its advantages of rapid implementation and high success rate of anti-takeover by comparing with other anti-takeover measures, which can better protect the interests of the company and its shareholders. It also points out its disadvantages from the angle of equity equality, corporate internal governance and external supervision effect. The second part is the practice of poison pill plan and the legislative status of anti-takeover measures. This part points out the problems existing in the practice of poison pill plan through the method of case analysis, and then analyzes the legislative status of anti-takeover measures in our country, and concludes that the practice of anti-takeover in our country needs to be guided by law. Many anti-takeover measures including poison pill plan need to be recognized and regulated by law. The third part is the experience of foreign countries about poison pill planning regulation. Based on the analysis of the current legislative situation and reasons of the United States and some European countries and regions, this part draws the legislative enlightenment to the regulation of poison pill plan in our country, that is, the legislative attitude to the poison pill plan should be allowed to exist legally under certain conditions. However, it is necessary to strictly restrict its use and establish a series of supporting systems to regulate it. The fourth part is the legislative thinking on the planning regulation of poison pill in China. On the basis of further expounding the necessity and feasibility of poison pill plan in our country, this part puts forward the concrete design of poison pill plan regulation, including determining the scope of poison pill plan use. Determine the ownership of proposals and decision-making powers and establish case review criteria.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：F271
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