Research On The Legal Issue Of Anti-takeover Clauses In Articles Of Association Of The Listed Corporations

The phenomenon of takeover and anti-takeover is not uncommon in the capital markets of full circulation of equity.Their checks and balances contribute to a kind of symbiotic relationship.Our country has a special department regulation named Administrative Rules on Acquisition of Listed Company to regulate the acquisition,but almost no explicit provision mentioned anti-takeover provisions.The Baoneng kept holdings of Vanke's stocks in securities market in 2015 and became the largest shareholder of Vanke.This marked the beginning of Vanke's equity dispute.Vanke immediately took the stock suspension for racing against time to resist the acquisition,but its management was caught in the crisis of recall,leading to the outside worries about the fate of Vanke.Although eventually ended in the opposition of the board,many listed companies were aware of the cruelty of acquisitions in the capital market and had become "frightened".They amended the existing articles of association to add anti-takeover provisions in order to prepare in advance for the anti-takeover,but the additional anti-takeover terms were varied,many listed companies were anxious to set a trap in the articles of association to reduce the probability of acquisition to zero.This phenomenon also led to regulators' concerns,the Securities Regulatory Commission issued that anti-takeover provisions should not be set to limit the interests of shareholders and infringe the rights of the company.In this paper,the anti-takeover clauses in articles of association of listed companies have been studied in order to study how to regulate the anti-takeover terms.There are four parts in this article in addition to the introduction and the conclusion.First of all,the first part makes a simple description of the theory of the game relationship between the acquisition and anti-acquisition,the value of the acquisition and anti-acquisition,the legal property and the boundaries of autonomy of the articles of association,the differentiation between the arbitrary norms and mandatory norms in the company law and so on to lay the foundation of the study.Secondly,the second part of the article analyzes the effectiveness of the anti-takeover terms one by one by comparing with China's existing laws and regulations on acquisitions and anti-takeover on the basis of typing the additional anti-takeover clauses of the listed companies since the beginning of the takeover battle between Vanke and Baoneng and finally summarizes the characteristics of the additional anti-takeover provisions and the existing problems in China's legislation.Then,the third part selects Britain and the United States,the European Union and Japan as the research object,summarizes the legislation relating to their acquisition and anti-takeover and finds that Britain and the United States belong to the common law system,but their anti-takeover legislation is not same.The UK anti-takeover is decided by the shareholders' meeting,while the US is decided by the board,but the common point is that the strict rules for the responsibility for the directors.Finally,the fourth part is about the perfect proposal of the regulation of the anti-takeover clauses in the articles of association of our country,mainly to study from Japan,Britain and the United States.First of all,they are reflected in making the articles on whether companies having autonomy to make higher or lower standard on the relevant matters to be clear in the "Company Law" to solve the chaos in practice.Moreover,we need to establish a strict responsibility system of directors,because the separation of companies' ownership and management is universal,especially the listed companies.There are not too detailed provisions in China's legislation on the obligations and responsibility for directors to perform,so needed to clarify.In addition,I suggest that the internal supervisory board,the independent directors and the newly established public service agency named "the service center for minority shareholders" as the company's shareholders within the pilot range should work together to play a supervisory role.We should also establish diversified supervision mode to make the external Securities Regulatory Commission,the provincial Securities Regulatory Bureau,the stock exchange and the court together and make a joint internal and external coordination of the multi-supervisory mechanism.