Research On The Anti-takeover Provisions In The Articles Of Association

In recent years,the acquisition in capital market of China is becoming more and more active.For example,Baoneng Group Company acquired Vanke Co.The hostile takeovers without the consent of the management of the target company have caused a certain shock to the capital market.In order to reduce the company's hostile takeovers,many companies set up anti-takeover clauses by amending the company's articles of incorporation,with the intention of increasing the acquisition cost of the hostile acquirer or the difficulty of controlling the company.However,the legality of the anti-acquisition clause has been questioned.In practice,the stock exchange often sends a letter of inquiry to the listed company for supervision.The effect is not obvious.In view of this,it is necessary to conduct an in-depth discussion on the anti-acquisition clauses,use the empirical research method to conduct practical investigations,and learn from the advanced experience of foreign anti-acquisition regulations to explore the effectiveness judgment and regulatory path of China's anti-acquisition clauses.Firstly,it analyzes the basic meaning of the anti-acquisition clause of the listed company's articles of association and the value of the anti-acquisition clause.It belie ves that the anti-acquisition clause in the listed company articles of association is the clause of the listed companies in China's Shanghai and Shenzhen stock exchanges in the charter.And approved by the shareholders meeting.At the same time,the anti-ac quisition clause is regulated on the basis of affirming the positive value of the anti-ac quisition clause.Secondly,using the empirical research method to investigate the actual operation of the articles of association of listed companies in Shanghai and Shenzhen,based on this analysis of the legality of the anti-acquisition clause.Judging the legitimacy of restricting shareholders' rights-type clauses requires consideration of the shareholders' fiduciary duties and must not abuse their rights to harm the interests of other shareholders.For the super majority clause,the increase of the majority ratio should be analyzed in conjunction with the company's shareholding structure,so that whether the major shareholder has one vote veto is the criterion.For the restrictions on shareholders' shareholdings that are higher than the statutory 3% shareholding ratio and set the shareholding period,the principle of equity equality is violated.For information disclosure clauses below the legal 5% ratio,it is invalid because it violates the mandatory regulations.The main reason for controlling the anti-takeover clause of the board of directors is to pay attention to whether the directors have fulfilled their loyalty obligations and fiduciary duties.The specific provisions of the company's articles of association on the qualifications of directors are to supplement the company law in light of the company's own situation.It should grasp whether to limit the nomination rights of shareholders' directors,judge the effectiveness of such clauses,and analyze the effectiveness of the golden parachute clause in combination with market rationality.In addition,from the perspective of written legislation and case law,the foreign anti-acquisition legislation is representative of the legal system of several countries.The United States mainly judges the legality of anti-acquisition measures through judicial review,and uses the director's diligence obligation and business judgment rules to judge.The decision on the anti-takeover measures will be passed to the board of directors.The United Kingdom adopts the principle that the directors abide by the duty of care and the duty of loyalty to restrict the power of the board of directors and hand over the decision of the anti-takeover decision to the general meeting of shareholders.China should learn from the decision-making model of the UK's shareholders meeting,and insist that the anti-acquisition decision-making power can be appropriately improved based on the shareholders meeting.Finally,it puts forward reasonable and feasible suggestions on the legal regulation of anti-acquisition clauses from the three aspects of constructing anti-acquisition clause regulation system,strengthening administrative supervision and improving judicial review to protect minority shareholders' judicial relief rights.From the top-level design aspect,we should construct a regulatory system for anti-acquisition clauses,establish a model list of anti-acquisition clauses of the company's articles of association,and provide guidance on the judgment of the legality of anti-acquisition clauses by summarizing and enumerating methods,and improve the specific requirements of directors loyalty and diligence obligations and information disclosure.From the aspect of administrative supervision,it is first necessary to establish a review institution,and in combination with China's local conditions,it is recommended that the CSRC be an administrative review body,and a special agency for reviewing anti-acquisition clauses can be set up under the CSRC.In view of the lack of necessary remedies for China's anti-acquisition clauses infringing on shareholders' rights,we should improve the shareholder litigation system stipulated in the Company Law,and collect evidence for the small and medium-sized shareholders of the weak party,and assign the burden of proof to the board of directors or controlling shareholder.