上市公司合并中异议股东回购请求权研究
发布时间：2019-06-21 08:08
【摘要】：近几年来,我国上市公司合并案例日益增多,尤其以换股方式进行合并避免了大量的现金流,节约了交易成本,成为上市公司合并的趋势。然而,在上市公司合并过程中,异议股东的利益往往遭到漠视甚至损害。纵观各国立法与实践,主要是通过信息披露制度、控股股东的诚信义务、异议股东回购请求权制度对上市合并中的中小股东提供保护,其中异议股东回购请求权制度是上市公司合并中的中小股东利益的重要手段。我国现行《公司法》虽然规定了异议股东回购请求权制度,但是其规定内容过于简陋,不能对公司实践提供可行的法律引导与规制。本文则是从我国上市公司实践出发,运用实证分析、比较分析、价值分析、经济分析等研究方法,以我国两个上市公司合并案例为切入点,对上市公司换股合并过程中异议股东回购请求权制度进行研究。 本文除引言和结论外共分四部分: 第一部分,结合已给案例,提出我国上市公司合并中有关行使异议股东的回购请求权存在的焦点问题,即如何确定回购请求权的权利义务主体范围?如何确定异议股东回购请求权的行使程序?如何进行回购股份价格评估? 第二部分,主要探讨我国上市公司合并中回购请求权的权利义务主体范围问题,即适用股东范围和回购义务主体范围。我国公司立法对此没有明确规定,导致公司实践中界定混乱,损害了中小股东的利益。在适用股东范围方面,国外立法主要有两种立法例,即一种仅包括被合并方的异议股东,另一种包括合并双方的异议股东。在回购义务主体方面,也有两种立法例,即一种认为只有公司才具有回购义务,另一种认为公司和控股股东都有回购义务。笔者认为,应当赋予合并双方的异议股东平等的回购请求权,且应仅当把公司都列入回购义务主体范围,控股股东不应承担回购义务。 第三部分,主要探讨我国上市公司中异议股东回购请求权的行使程序问题。在异议股东回购请求权的行使程序方面,我国公司立法严重缺漏,实践中上市公司各行其是,不利于异议股东利益的保护。国外立法一般都对此有明确的规定。笔者主张,应由立法明确并细化异议股东回购请求权的行使程序,具体程序应包括如下环节:(1)公司的告知义务;(2)异议股东提前做出反对通知;(3)异议股东在股东大会上不投赞成票;(4)公司通知股东决议结果和行使权利的程序;(5)股东提出行权请求;(6)公司确定并公开股权回购价格;(7)价格异议救济;(8)支付价款。 第四部分,主要探讨我国上市公司合并中回购股份价格评估问题。即围绕价格确定主体、价格评估方法、司法评估程序三个方面内容进行探讨。笔者认为,我国立法宜采由上市公司确定回购股份价格,股东对价格有异议,可以和公司进行协商,协商不成再由股东或公司启动司法评估程序的综合协调确定价格模式,并提出股份价格评估应坚持的原则。
[Abstract]:In recent years, the combined cases of listed companies in our country have been increasing, especially in the exchange of shares, so that a large amount of cash flow is avoided, the transaction cost is saved, and the merging trend of the listed companies is made. However, in the course of the merger of listed companies, the interests of the dissident shareholders are often ignored or even damaged. Throughout the country's legislation and practice, it is mainly through the information disclosure system, the credit obligation of the controlling shareholder, and the system of right of objection to the shareholder's back-back to provide protection to the small and medium-sized shareholders in the listing merger, Among them, the system of the right to buy back of the objection is an important means of the interests of the small and medium-sized shareholders in the merger of the listed company. In our country, the company's company law has set out the system of the right to buy back of the dissenting shareholders, but its contents are too simple to provide the feasible legal guidance and regulation to the practice of the company. This paper, based on the practice of listed companies in China, uses the methods of empirical analysis, comparative analysis, value analysis, economic analysis and so on. In addition to the introduction and conclusion, the article is divided into four parts. The first part, in combination with the given case, puts forward the question of the focus on the right to buy back right of the shareholders in the merger of the listed companies in China, that is, how to determine the rights and obligations of the right to buy back Scope of the body? How to determine the line of the objection to the shareholder's right to buy back How to make the program? How to buy back the share price The second part, mainly discusses the main scope of the rights and obligations of the right and obligation of the repurchase right in the merger of the listed companies in our country, namely, the application of the shareholders' scope and the repos; The scope of the main body of the company is not specified in the legislation of our company, which leads to the confusion in the practice of the company and the small and medium-sized enterprises. The interests of the shareholders. In terms of the scope of the applicable shareholders, the foreign legislation mainly has two legislative cases, namely, one that includes only the dissenting shareholders of the merged party, and the other includes the combination of both parties In the case of the main body of the repurchase obligation, there are two legislative cases, namely, one considers that only the company has the obligation to buy back, and the other is that both the company and the controlling shareholder There is the obligation to buy back. The author believes that the right to buy back of the dissenting shareholders of both parties should be given, and only when the company is listed in the main scope of the repurchase obligation, the controlling shareholder shall not bear the right to bear it. The third part mainly discusses the right to buy back of the dissenting shareholders in the listed companies in our country In view of the problem of the exercise of the right of exercise, in the case of the exercise of the right of the shareholder's right to buy back, the company's legislation in our country is seriously deficient, and the listed company in practice is not in favor of the objection. The protection of the interests of the shareholders. The author claims that the procedures for exercising the right to buy back of the dissenting shareholders shall be clarified and refined by the legislation, and the specific procedures shall include the following steps: (1) the obligation of the company to inform the shareholders; (2) the objection to the shareholders to make an objection in advance; and (3) the dissenting shareholders are large in the shareholders. (4) The Company shall not vote in favour; (4) the Company shall notify the shareholders of the process of the resolution of the resolution and exercise the right; (5) the shareholders propose the right to conduct the exercise; (6) the Company shall determine and disclose the price of the share repurchase; and (7) the price objection relief; (8) Pay the price. The fourth part mainly discusses the merger of listed companies in our country The question of the evaluation of the price of the purchase stock. That is, the main body, the price evaluation method and the judicial evaluation program are determined around the price. In the author's opinion, our country's legislation should be determined by the listed company to determine the price of the stock-back share, and the shareholders have no objection to the price, and the shareholders or the company can start the judicial evaluation program. To coordinate and determine the price mode and to put forward a share price
【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】：D922.291.91
本文编号：2503921
[Abstract]:In recent years, the combined cases of listed companies in our country have been increasing, especially in the exchange of shares, so that a large amount of cash flow is avoided, the transaction cost is saved, and the merging trend of the listed companies is made. However, in the course of the merger of listed companies, the interests of the dissident shareholders are often ignored or even damaged. Throughout the country's legislation and practice, it is mainly through the information disclosure system, the credit obligation of the controlling shareholder, and the system of right of objection to the shareholder's back-back to provide protection to the small and medium-sized shareholders in the listing merger, Among them, the system of the right to buy back of the objection is an important means of the interests of the small and medium-sized shareholders in the merger of the listed company. In our country, the company's company law has set out the system of the right to buy back of the dissenting shareholders, but its contents are too simple to provide the feasible legal guidance and regulation to the practice of the company. This paper, based on the practice of listed companies in China, uses the methods of empirical analysis, comparative analysis, value analysis, economic analysis and so on. In addition to the introduction and conclusion, the article is divided into four parts. The first part, in combination with the given case, puts forward the question of the focus on the right to buy back right of the shareholders in the merger of the listed companies in China, that is, how to determine the rights and obligations of the right to buy back Scope of the body? How to determine the line of the objection to the shareholder's right to buy back How to make the program? How to buy back the share price The second part, mainly discusses the main scope of the rights and obligations of the right and obligation of the repurchase right in the merger of the listed companies in our country, namely, the application of the shareholders' scope and the repos; The scope of the main body of the company is not specified in the legislation of our company, which leads to the confusion in the practice of the company and the small and medium-sized enterprises. The interests of the shareholders. In terms of the scope of the applicable shareholders, the foreign legislation mainly has two legislative cases, namely, one that includes only the dissenting shareholders of the merged party, and the other includes the combination of both parties In the case of the main body of the repurchase obligation, there are two legislative cases, namely, one considers that only the company has the obligation to buy back, and the other is that both the company and the controlling shareholder There is the obligation to buy back. The author believes that the right to buy back of the dissenting shareholders of both parties should be given, and only when the company is listed in the main scope of the repurchase obligation, the controlling shareholder shall not bear the right to bear it. The third part mainly discusses the right to buy back of the dissenting shareholders in the listed companies in our country In view of the problem of the exercise of the right of exercise, in the case of the exercise of the right of the shareholder's right to buy back, the company's legislation in our country is seriously deficient, and the listed company in practice is not in favor of the objection. The protection of the interests of the shareholders. The author claims that the procedures for exercising the right to buy back of the dissenting shareholders shall be clarified and refined by the legislation, and the specific procedures shall include the following steps: (1) the obligation of the company to inform the shareholders; (2) the objection to the shareholders to make an objection in advance; and (3) the dissenting shareholders are large in the shareholders. (4) The Company shall not vote in favour; (4) the Company shall notify the shareholders of the process of the resolution of the resolution and exercise the right; (5) the shareholders propose the right to conduct the exercise; (6) the Company shall determine and disclose the price of the share repurchase; and (7) the price objection relief; (8) Pay the price. The fourth part mainly discusses the merger of listed companies in our country The question of the evaluation of the price of the purchase stock. That is, the main body, the price evaluation method and the judicial evaluation program are determined around the price. In the author's opinion, our country's legislation should be determined by the listed company to determine the price of the stock-back share, and the shareholders have no objection to the price, and the shareholders or the company can start the judicial evaluation program. To coordinate and determine the price mode and to put forward a share price
【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】：D922.291.91
【引证文献】
相关硕士学位论文 前3条
1 刘玉琪;股份回购请求权制度中价格评估法律问题研究[D];华东政法大学;2012年
2 刘海东;换股吸收合并中换股比例及相关问题研究[D];上海交通大学;2013年
3 李璐;我国上市公司换股合并中的股东主动退出制度研究[D];北京化工大学;2013年
，本文编号：2503921
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