反收购措施的合法性审查研究
发布时间：2018-11-15 20:00
【摘要】： 摘要：随着我国市场经济的发展和资本市场的活跃,公司之间的收购与反收购战役已越来越激烈。收购作为外部监督的有效手段可以优化资源配置促使管理层积极履行义务,而反收购对收购的负面作用可以进行匡正与补足,因此上市公司收购与反收购需要用法律手段进行治理,使其在资本市场充分发挥作用。本文正是以反收购措施为角度,探讨在我国建立反收购措施合法性审查的可能性和具体制度构建。 本文从反收购的概念和基本形式入手,进而提出反收购措施合法性审查的内涵和主体。并探讨了反收购措施合法性审查的目的,即维持并购秩序,保证并购经济和法律上的效益；规范反收购措施实施者的行为,保证该措施的合法性；保护公司其它相关者的利益。 公司所有权与经营权的分离,使公司股东转让股份以取得溢价的倾向和管理层阻止收购以维持其控制权收益的倾向发生了冲突,同时公司中主要利益集团存在信息不对称,本文以此作为反收购措施合法性审查的理论铺陈,分别以法律监管论和目标公司中主要利益集团为角度,进一步论证反收购措施合法性审查的理论依据。 美国收购与反收购的法律均出现较早并较为健全,采用以董事会为主导的反收购模式,而英国、德国、欧盟采用限制董事会决策权的反收购模式,这些国家在相关方面的立法都能为我国建立相应制度带来启示,本文对国外立法水平和监管情况做了比较和分析,并以我国《公司法》、《上市公司收购管理办法》为代表,介绍我国在反收购及其合法性审查方面的现状和不足。 最后,本文对完善我国反收购措施的合法性审查给出了建议,提出了目标公司实施反收购措施应遵循的原则,并从反收购措施合法性审查的提起方式和审查规则等方面探讨具体制度的构建。
[Abstract]:Absrtact: with the development of market economy and the active of capital market, the battle of acquisition and anti-takeover between companies has become more and more fierce. As an effective means of external supervision, buy-out can optimize the allocation of resources and prompt the management to fulfill their obligations actively, while the negative effect of anti-takeover on the buy-out can be rectified and supplemented. Therefore, the acquisition and anti-takeover of listed companies need to be governed by legal means so that they can play a full role in the capital market. From the angle of anti-takeover measures, this paper probes into the possibility of establishing the legality examination of anti-takeover measures in China and the construction of specific systems. Starting with the concept and basic form of anti-takeover, this paper puts forward the connotation and subject of legality examination of anti-takeover measures. The purpose of the legitimacy examination of anti-takeover measures is to maintain the order of M & A, to ensure the economic and legal benefits of M & A, to standardize the behavior of the perpetrators of anti-takeover measures, to ensure the legality of the measures, and to protect the interests of other stakeholders of the company. The separation of company ownership and management rights makes the tendency of shareholders to transfer shares to obtain premium and the tendency of management to block buy-out to maintain the profit of control right. At the same time, the main interest groups in the company have information asymmetry. This article takes this as the theory of the legitimacy examination of the anti-takeover measures, respectively, taking the legal supervision theory and the main interest group in the target company as the angle, further demonstrates the theoretical basis of the legitimacy examination of the anti-takeover measure. The American takeover and anti-takeover laws appeared earlier and more sound, adopting the anti-takeover mode dominated by the board of directors, while the UK, Germany and the European Union adopted the anti-takeover model, which restricted the decision-making power of the board of directors. The relevant legislation of these countries can bring enlightenment to the establishment of the corresponding system in our country. This paper compares and analyzes the legislative level and supervision situation of foreign countries, and takes the Company Law of our country and the Management measures for the acquisition of listed companies as the representatives. This paper introduces the current situation and deficiency of anti-takeover and its legality examination in China. Finally, this paper gives some suggestions to improve the legality of the anti-takeover measures in China, and puts forward the principles to be followed by the target companies in carrying out anti-takeover measures. This paper also discusses the construction of specific system from the aspects of the way of raising and the rules of examining the legality of anti-takeover measures.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2334303
[Abstract]:Absrtact: with the development of market economy and the active of capital market, the battle of acquisition and anti-takeover between companies has become more and more fierce. As an effective means of external supervision, buy-out can optimize the allocation of resources and prompt the management to fulfill their obligations actively, while the negative effect of anti-takeover on the buy-out can be rectified and supplemented. Therefore, the acquisition and anti-takeover of listed companies need to be governed by legal means so that they can play a full role in the capital market. From the angle of anti-takeover measures, this paper probes into the possibility of establishing the legality examination of anti-takeover measures in China and the construction of specific systems. Starting with the concept and basic form of anti-takeover, this paper puts forward the connotation and subject of legality examination of anti-takeover measures. The purpose of the legitimacy examination of anti-takeover measures is to maintain the order of M & A, to ensure the economic and legal benefits of M & A, to standardize the behavior of the perpetrators of anti-takeover measures, to ensure the legality of the measures, and to protect the interests of other stakeholders of the company. The separation of company ownership and management rights makes the tendency of shareholders to transfer shares to obtain premium and the tendency of management to block buy-out to maintain the profit of control right. At the same time, the main interest groups in the company have information asymmetry. This article takes this as the theory of the legitimacy examination of the anti-takeover measures, respectively, taking the legal supervision theory and the main interest group in the target company as the angle, further demonstrates the theoretical basis of the legitimacy examination of the anti-takeover measure. The American takeover and anti-takeover laws appeared earlier and more sound, adopting the anti-takeover mode dominated by the board of directors, while the UK, Germany and the European Union adopted the anti-takeover model, which restricted the decision-making power of the board of directors. The relevant legislation of these countries can bring enlightenment to the establishment of the corresponding system in our country. This paper compares and analyzes the legislative level and supervision situation of foreign countries, and takes the Company Law of our country and the Management measures for the acquisition of listed companies as the representatives. This paper introduces the current situation and deficiency of anti-takeover and its legality examination in China. Finally, this paper gives some suggestions to improve the legality of the anti-takeover measures in China, and puts forward the principles to be followed by the target companies in carrying out anti-takeover measures. This paper also discusses the construction of specific system from the aspects of the way of raising and the rules of examining the legality of anti-takeover measures.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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