| In one word, the key words to illustrate the feature of every industry in the world of today are M&A(merger and aquisition). In order to enlarge scale and strengthen benefits, all indutries carry out series of M&A. Any industry, has five or six large groups which have the dominant power in their hands, lead the whole industry and give impetus to the enterprises' M&A in a large scale. In the same way, companies' M&A is developing vigorously in China and becomes the major measure to adjust th distribution of social resoures among the economic operation of China.Because the result of companies' M&A usually come out with the variety of management rights and a substantial influence on their business and development, it has become an important problem how we should balance the interests of company itself, shareholders, creditors and its staff and workers to guarantee appropriately rights and interests of minority shareholders, creditors , and staff and workers. Especially in the present time of our country , in the course of companies' M&A, most minority shareholders are inferior and trampled upon as a result of their own and other reasons outside. Controling shareholders, directors, and management take advantage of their advantageous status and unsymmetrical information to plunder and seriously damage the interests of minority shareholders, but the present law only can supply very limited protection and redress. Therefore, I choose the protection to the minority shareholders in the companies' M&A as my study topic of the thesis for Doctor' s Degree.For the arrangement of the thesis' s structure, the thesis includes 9 chapters as following:Chapter 1 is the introduction which details the incentive, attitude, approach and structure of study.Chapter 2 is the gerneral introdution of companies' M&A. Firstly,it illustrates the relevant concepts and types of companies' M&A separately; Secondly, it expounds the developingt survey of companies' M&A at home and abroad, 5 representative tides in U.S.A. and 2 domestic climaxes; Finally, it simply evaluates the value, significance and intention of companies' M&A in order to make it clear that companies' M&A is an irresistible tide and has its positive value and significance and we should encourage and develop it. Companies' M&A has positive functions that it can reduce management cost, representative cost and brings synthetical benefits for purchasers, targeted companies and social economy, which causes that many countries' legislation on companies' M&A should be useful for the company' s adaptation of organizations, the development of business efficiency and the fairness and justice of traditional jurisprudence, which is that we should protect minority shareholders and interested persons to get to a balance between efficiency and fairness.Chapter 3 details the legislative reasons for the protection to minority shareholders in companies' M&A. It analyses the reason that we protect the minority shareholders specially. At first, it explains, illustrates, and defines the word "minority shareholders" . Then, it analyses why the minority shareholders are inferior in companies, and further more, it details the inferior standing of the minority shareholders, the significance for the protection of minority shareholders. Finally, it comes to the conclusion that we should adopt special protection to the minority shareholders.Chapter 4 observes and studies the protection to the minority shareholders in companies' M&A in a perspective of comparative law. This part investigates individually characteristic protection system for the minority in companies' M&A of Britain, America, Japan, Germany and EU respectively. With regard to Japan and Germany, the thesis observes its protection to the minority shareholders in companies' merger since its merger system and practice are more advanced than thatin its public acquisition. While the thesis studies the protection to minority shareholders from British mandatory purchase and Amercan regulation system, disclosure of information and duty of good faith of directors and controling shareholders with regard to Britain and America whose characteristic system is tender offer; The acquisition system of EU is mainly reflected in the 13th injunction which introduces mandatory purchase of Britain , enlarges the scope of exemption in the 13th injunction and engages a limit of fair price.Then it comes to the comclusion through comparation: we have no the legal tradition and environment of duty of good faith, so we should introduce the mandatory purchase system of Britain, other contries' diclosure system of information directors and contorling shareholders' duty of good faith and appraisal rights. It can be said the cornerstone of the protection system for the minority shareholders which is prevalently used by most countries. However, we haven' t the need in the duty of good faith and provision in appraisal rights rather than information disclosure. It can also be said that we haven' t establish a perfect protection system for minority shareholders in companies' M&A. The thesis will design the protection system for our minority shareholders in the next chapter.Chapter 5 details the design of system to protect the minority shareholders in companies' M&A. this part specificly designs a set of protection system for the minority shareholders from the aspects of disclosure of information, appraisal rights of objection shareholders, strengthening director' s duty of faith and controling shareholders' duty of good faith. It specifies their basic concepts, components, legislative value and application condition at home and abroad, and then, it comes to the pefection of these systems in our country. With regard to appraisal rights of objection shareholders, the thesis suggests that we enlarge its application to some exclusive condition at present, and there should be no exclusive marketing application in principle. We should strictly limit the exclusive application ofremedy and have a fair evaluation to the value of objection shares to really protect the minority shareholders in an all-round way. To perfect the disclosure of information, we should pay more attention to the problem of concerted action, regard all the shares of shareholders taking concerted action as shares of one person, and they should perform the duty of disclosure as the shares held by them reach to the pro-rata provided by the law, in order to realize the function of the disclosure. For the perfection of directions and controling shareholders' duty of good faith, the thesis mainly puts it in the dynamic environment of companies' M&A to analyse their duty of loyalty and duty of care at each phase or step. The director' s duty of good faith has different reflection and need in companies' merger and their acquisition. In companies' merger, we should (1)strengthen the director' s duty of inestigating the opposite company to provide help of strategies for the shareholders; (2)estabilish the duty of making the information of merger public. While it is the difficult problem of legal regualation how to supervise the board of director' s duty of good faith. The thesis details 5 points: (1)the limitation of the board of director' s defensive rights;(2)starting with the shareholders' biggest profit; (3)the duty of providing help for the shareholders' strategies; (4) the duty of striving for the shareholders' biggest profit; (5) the duty of information disclosure, and probiting cheat and misleading. That the perfection of controlling shareholder' s duty of good faith is realized through: (1)the controlling shareholder' s duty of disclosure; (2)the limitation of the controlling shareholder' s voting power; (3) the introduction of shareholder' s derivative action system; (4)exclusionary system of controlling shareholder' s voting power.Chapter 6 is the re-examination and self-criticism towards mandatory purchase system. Mandatory purchase system is a very important system in companies' M&A, which is prevalently taken as the protecting measure for the minority shareholders and we also adopt it .But in fact, whether the system can realize its function to protect the minority shareholders is still a controversial question by the theoretical field and practical field in the world. Especially under our present economic background , the essence of the system' s inplement is objected by many scholars and pragmatists. Therefore, the thesis re-examines and critisizes the system implemented by us. First, we discuss the legislative purpose. Then, we will query the reasonableness and essence of the system. Finally, we will discuss whether we need the system and come to the conclusion. Through the analysis, we find that the implement of mandatory purchase system is lacking of benificial foundation either in theory or in practice. Nevertheless, the implement of mandatory purchase system also brings many hard nuts to crack and many negative influnences. As a result, there is no need for us to establish mandatory purchase system in view of our actual condition of securities market.Chapter 7 details efficiency and fairness and concurrently involves squeezing purchase. In the perspective of legal economics, this part puts forward the viewpoint that companies' M&A should pursue economic benefits and take account of fairness and justice concurrently, in order to reach competitive equilibrum between efficiency and fairness. It will go against the fairness and justice that human beings should stick to if the rights which should be held by interested persons in view of the fairness principle are devoured with the excuse of reducing the cost of M&A. while we are stubbornly constrainted by so-called fairness and justice and protect the minority shareholders, this will raise the social cost excessively, result in the reduction of M&A, cause the social resources not able to be distributed efficiently and form the situation of non-efficiency. Thereafter, this part evaluates the squeezing M&A with the example of the successful application of squeezing M&A in U. S. A., and points out the limit to protect the minority shareholders—it is not suitable to over-protect the minority shareholders in order to take the efficiencyinto account concurrently.Chapter 8 details the remedy for the minority shareholders in companies' M&A. Where there is loss, there is remedy. How to redress the interests of the minority shareholders in time and in full is a wealthly discussed topic if they are damaged in the course of companies' M&A. In the course of the perfection of company and securities legislation, the corresponding remedy to the loss of the minority shareholders damaged will be stipulated while legal protection system is provided in companies' M&A. This part discusses the perfection of the relevant legal system in force from the substantive question (civil liability) and the procedural question (shareholders' action) . In the study of civil liability system, we mainly study the civil liability of unreal disclosure and the director' s and controlling shareholder' s liability when they disobey their duty of good faith. In the procedure system, we study shareholder' s derivative action system into companies' M&A has great significance to protect shareholder' s legal rights and interests and to restrain directors' high management level and controlling shareholders' behaviour in company. At last, we study which kind of action can safeguard minority shareholders' intersts with the example of the group action of U.S.A.. |
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