我国外资并购监管立法问题研究
发布时间：2018-07-25 20:27
【摘要】： 近几年来,我国市场环境不断成熟和完善,整体经济呈现出快速、稳定发展的良好态势,国内逐渐涌现出一大批管理制度规范、颇具规模、且发展潜力巨大的民营企业。但同时,随着国企改制的深入和外资并购高潮的兴起,在行业内占据龙头地位的大型国企也相继孕育而生,由此而引发了关于外资并购导致的行业垄断、国家经济安全等问题成为众多经济学者和普通百姓争相讨论的焦点。客观而言,随着我国法治进程的加速,我国在外资并购立法领域已经取得十分可喜的丰硕成果。2005年新《公司法》、《证券法》的颁布,2006年对《关于外国投资者并购境内企业暂行规定》的修订和2007年颁布了《反垄断法》以及近些年来不断修改出台的相关法规及准则,都为规范外资并购行为提供了强有力的依据。尽管如此,但仍有大量的立法空白和漏洞,这也成为我们未来研究和探寻的方向。 外资并购的立法是否完善,不仅关系到市场结构的变化,而且关系到市场准入机制和国家的经济安全,最终直接影响国家的经济发展和社会的安定与和谐,因此,研究外资并购的立法完善,不仅具有重大的理论意义,而且具有极为重要的社会现实意义。鉴于此,本文试图在客观分析外资并购的基本理论的基础上,剖析外资并购对我国社会经济发展的利与弊,并着重分析我国现行外资并购立法所存在的主要问题,继而就如何进一步完善我国外资并购的立法与司法实践提出一些初浅的建议,以期能够对我国有关外资并购立法的完善尽一点微薄之力,并以此求教于各位专家学者。 本文共分三大部分。 第一部分是关于“外资并购”的基本理论分析。主要阐释了并购、外资并购的含义和主要特点,并对外资并购的基本类型进行的梳理;剖析了外资并购的利与弊;阐释了外资并购的各种监管理论,并重点分析了我国现行外资并购监管的实践。 第二部分剖析了我国外资并购监管立法的现状。通过回顾我国外资并购立法的历史演进,分析了我国外资并购立法存在的主要问题,即我国现行的外资并购立法在监管主体、反垄断监管标准、反垄断监管程序、反垄断监管的惩罚机制和救济措施以及市场准入监管立法等方面均不同程度的存在缺陷。从而为研究如何进一步完善完善我国外资并购监管立法奠定基础。 第三部分对我国外资并购监管立法的完善提出了具体建议。我国外资并购监管立法应实行体系化,即外资并购监管立法是一个系统工程,其法律内容除反垄断法外,还需要公司法、证券法、劳动法、社会保障法等众多的法律部门分别从不同层次、不同角度进行规制;我国外资并购监管立法应坚持经济安全原则、促进有效竞争原则、效益原则和保护少数股东及债权人利益原则等基本原则;我国外资并购监管立法的模式应该采用基本法与其他法并举的模式。即既要制定外资并购的基本法,又要完善公司法、外商投资法等其他相关法律,共同服务于外资并购的监管。
[Abstract]:In recent years, the market environment in China has been matured and perfected. The overall economy has shown a good trend of rapid and stable development. A large number of private enterprises have emerged in China, with a large number of management systems, large scale and huge potential for development. At the same time, with the deepening of the reform of state-owned enterprises and the rise of the high tide of foreign capital mergers and acquisitions, it occupies the dragon in the industry. The large state-owned enterprises with the first status have also been born in succession, which caused the industry monopoly caused by foreign capital mergers and acquisitions. The problems of national economic security have become the focus of many economic scholars and ordinary people. Objectively, with the acceleration of the process of rule of law in China, China has made great joy in the legislation field of foreign capital merger and acquisition. In the year of.2005, the new "company law" and the promulgation of the securities law were issued in 2006. In 2006, the revision of the Provisional Regulations for the merger and acquisition of domestic enterprises by foreign investors and the promulgation of the anti monopoly law in 2007 and the relevant regulations and rules that have been constantly revised in recent years have provided a strong basis for the standardization of foreign capital mergers and acquisitions. There are lots of legislative gaps and loopholes. This has become the direction of our future research and exploration.
Whether the legislation of foreign capital mergers and acquisitions is perfect is not only related to the changes in market structure, but also to the market access mechanism and the economic security of the country. Finally, it directly affects the economic development of the country and the stability and harmony of the society. Therefore, it is not only of great theoretical significance but also of great importance to study the legislative perfection of foreign capital merger and acquisition. In view of this, this article tries to analyze the advantages and disadvantages of foreign merger and acquisition to China's social and economic development on the basis of the objective analysis of the basic theory of foreign capital merger and acquisition, and emphatically analyses the main problems in the legislation of China's current foreign capital merger and acquisition, and then how to improve the legislation and judicial practice of foreign M & A in our country. Some early and shallow suggestions are put forward in order to make a little effort to improve the legislation of foreign capital mergers and acquisitions in China, and seek advice from experts and scholars.
This article is divided into three parts.
The first part is about the basic theoretical analysis of "foreign capital M & a". It mainly explains the meaning and main characteristics of M & A, the basic types of M & A, analyses the advantages and disadvantages of foreign capital merger and acquisition, interprets the various supervision theories of foreign capital merger and acquisition, and emphatically analyzes the supervision of the current foreign capital merger and acquisition in China. Practice.
The second part analyzes the current situation of the foreign capital merger and acquisition legislation in our country. Through the review of the historical evolution of the foreign capital merger and acquisition legislation in our country, the main problems in the legislation of foreign M & A are analyzed, that is, the current foreign capital acquisition legislation in China is in the supervision subject, the antitrust regulatory standard, the antitrust regulatory procedure, the punishment mechanism of the anti-monopoly supervision and the punishment mechanism. There are some defects in the relief measures and the legislation of the market access supervision and so on, thus laying the foundation for the study of how to further improve our foreign capital merger and acquisition supervision legislation.
The third part puts forward specific suggestions on the perfection of our foreign capital M & a supervision legislation. The supervision legislation of foreign M & A should be systematized, that is, the supervision legislation of foreign capital merger and acquisition is a systematic project. In addition to the anti monopoly law, the legal contents of the M & a should also need the company law, the securities law, the labor law, the social security law and so on. To regulate the same level and different angles, our foreign capital M & a supervision legislation should adhere to the principles of economic security, promote the principle of effective competition, the principle of benefit and the principle of protecting the interests of minority shareholders and creditors. The basic law of capital merger and acquisition should also improve the company law, foreign investment law and other related laws, and jointly serve the supervision of foreign mergers and acquisitions.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.29
[Abstract]:In recent years, the market environment in China has been matured and perfected. The overall economy has shown a good trend of rapid and stable development. A large number of private enterprises have emerged in China, with a large number of management systems, large scale and huge potential for development. At the same time, with the deepening of the reform of state-owned enterprises and the rise of the high tide of foreign capital mergers and acquisitions, it occupies the dragon in the industry. The large state-owned enterprises with the first status have also been born in succession, which caused the industry monopoly caused by foreign capital mergers and acquisitions. The problems of national economic security have become the focus of many economic scholars and ordinary people. Objectively, with the acceleration of the process of rule of law in China, China has made great joy in the legislation field of foreign capital merger and acquisition. In the year of.2005, the new "company law" and the promulgation of the securities law were issued in 2006. In 2006, the revision of the Provisional Regulations for the merger and acquisition of domestic enterprises by foreign investors and the promulgation of the anti monopoly law in 2007 and the relevant regulations and rules that have been constantly revised in recent years have provided a strong basis for the standardization of foreign capital mergers and acquisitions. There are lots of legislative gaps and loopholes. This has become the direction of our future research and exploration.
Whether the legislation of foreign capital mergers and acquisitions is perfect is not only related to the changes in market structure, but also to the market access mechanism and the economic security of the country. Finally, it directly affects the economic development of the country and the stability and harmony of the society. Therefore, it is not only of great theoretical significance but also of great importance to study the legislative perfection of foreign capital merger and acquisition. In view of this, this article tries to analyze the advantages and disadvantages of foreign merger and acquisition to China's social and economic development on the basis of the objective analysis of the basic theory of foreign capital merger and acquisition, and emphatically analyses the main problems in the legislation of China's current foreign capital merger and acquisition, and then how to improve the legislation and judicial practice of foreign M & A in our country. Some early and shallow suggestions are put forward in order to make a little effort to improve the legislation of foreign capital mergers and acquisitions in China, and seek advice from experts and scholars.
This article is divided into three parts.
The first part is about the basic theoretical analysis of "foreign capital M & a". It mainly explains the meaning and main characteristics of M & A, the basic types of M & A, analyses the advantages and disadvantages of foreign capital merger and acquisition, interprets the various supervision theories of foreign capital merger and acquisition, and emphatically analyzes the supervision of the current foreign capital merger and acquisition in China. Practice.
The second part analyzes the current situation of the foreign capital merger and acquisition legislation in our country. Through the review of the historical evolution of the foreign capital merger and acquisition legislation in our country, the main problems in the legislation of foreign M & A are analyzed, that is, the current foreign capital acquisition legislation in China is in the supervision subject, the antitrust regulatory standard, the antitrust regulatory procedure, the punishment mechanism of the anti-monopoly supervision and the punishment mechanism. There are some defects in the relief measures and the legislation of the market access supervision and so on, thus laying the foundation for the study of how to further improve our foreign capital merger and acquisition supervision legislation.
The third part puts forward specific suggestions on the perfection of our foreign capital M & a supervision legislation. The supervision legislation of foreign M & A should be systematized, that is, the supervision legislation of foreign capital merger and acquisition is a systematic project. In addition to the anti monopoly law, the legal contents of the M & a should also need the company law, the securities law, the labor law, the social security law and so on. To regulate the same level and different angles, our foreign capital M & a supervision legislation should adhere to the principles of economic security, promote the principle of effective competition, the principle of benefit and the principle of protecting the interests of minority shareholders and creditors. The basic law of capital merger and acquisition should also improve the company law, foreign investment law and other related laws, and jointly serve the supervision of foreign mergers and acquisitions.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.29
【相似文献】
相关期刊论文 前10条
1 ;中国年内陆续出台外资并购等法规[J];中国橡胶;2002年20期
2 何焰;关于我国外资并购的若干法律思考[J];天津市政法管理干部学院学报;2003年04期
3 陈永生;新政策环境下外资并购国有企业的思考[J];胜利油田党校学报;2004年05期
4 廉恩臣;;对外资并购应加强法律规制[J];法人杂志;2006年05期
5 黄俊峰;;外资并购引发担忧《反垄断法》出台与否存在争议[J];中国石油和化工;2006年06期
6 金伯生;;外资并购新规定七大看点[J];w挛胖芸，
本文编号：2144989
本文链接：https://www.wllwen.com/falvlunwen/laodongfa/2144989.html
