Research On The Legal Regulation Of Anti-takeover Provisions In The Articles Of Association Of Listed Companies

Since the reform and opening up,China has experienced two major waves of enterprise mergers and acquisitions.In 1984,the merger of Baoding Textile Machinery Factory and Hebei Knitting Equipment Factory opened the pioneer of enterprise mergers and acquisitions in China.In the following years,mergers and acquisitions sprang up like mushrooms.This wave swept all over the country with the publication of the Interim Measures on Enterprise Mergers and Acquisitions issued jointly by the State Reform Commission,the Ministry of Finance and the State Asset Administration at that time.This is the first wave of M&A in China.According to statistics from relevant departments,25 provinces,municipalities,autonomous regions and 13 cities with separate plans were merged in 1989 alone.In 1989 alone,2559 enterprises were merged,with a total of more than 2 billion yuan in assets transferred and 1204 enterprises in loss reduced.The second wave of mergers and acquisitions appeared after 1992.With the establishment of two major stock exchanges and the introduction of a series of joint-stock reform documents,the securities market has gradually developed,and the acquisition of listed companies has become the highlight of the second wave of mergers and acquisitions.Among them,in 1993,the case of Baoan Group's acquisition of Yanzhong Group opened a new era for the acquisition of listed companies.Since the pilot reform of non-tradable shares was put forward by the SFC in 2005,the phenomenon of different rights of the same shares has gradually improved,and the shares have entered the stage of full circulation.China's securities market has developed rapidly.Securities trading is becoming more and more active,and the acquisition and anti-acquisition of listed companies continue to take place.In this process,in the face of unknown acquisition risks,listed companies will step up the revision of the company's articles of association,together in the face of real hostile acquisition can effectively defend.With the continuous development of China's capital market,more and more companies begin to focus on listed companies,trying to gain huge profits by seizing the control rights of listed companies,utilizing the strong capital operation ability of listed companies,improving the corporate governance system and good market prospects.Only the Measures for the Management of the Acquisition of Listed Companies promulgated by the Securities Regulatory Commission(SFC)are the main pillars.Other provisions are scattered in the Company Law,the Securities Law,the Measures for the Management of Information Disclosure of Listed Companies and other laws and regulations.From an objective point of view,the existing legal system has been unable to adapt to the frequent acquisition activities of Listed Companies in China,and the review criteria of anti-acquisition clauses in the articles of association of listed companies are even more imperfect.Corporate autonomy and the autonomy of articles of association have always been the ideas advocated by the Company Law.There are certain provisions in the Company Law of our country on the relevant provisions of the articles of association,which do not involve the aspects of advocating the free formation of the company.This will lead to the abuse of the principle of constitutional autonomy in the formulation of articles of association.The acceptance of acquisition activities has undergone a long process in the legislation of all countries.In the process of restricting or prohibiting acquisition activities to activate the market and promote the positive development of capital,countries have established different legal systems on acquisition based on different value choices.Similarly,compared with the mergers and acquisitions that capitalism took the lead in developing,the acquisitions of Listed Companies in our country have developed slowly,and the establishment of the corresponding legal system has lagged behind.Nowadays,China's acquisition activities are carried out frequently,and anti-acquisition actions are more hasty and fierce.In order to resist the acquisition activities,some target companies take long-term suspension,amend the company's articles of association in violation of regulations,lag of information disclosure or even inaction,etc.These measures damage the rights and interests of small and medium-sized investors to varying degrees,and need to be regulated by relevant laws.This paper focuses on the common anti-takeover measures adopted by listed companies to resist hostile takeovers in the future,i.e.through the analysis of the beforehand formulation of the company's articles of association or the modification of the company's articles of association in the event,and through the analysis of the legality of these articles,in order to find a reasonable way to regulate them,so as to promote the progress of legal compliance of takeovers and anti-takeovers.This paper is mainly divided into four chapters to discuss the legal regulation of anti-takeover clauses in the articles of association of Listed Companies in China.Firstly,it introduces two typical cases of listed companies preventing and resisting hostile takeovers through their articles of association.One is the case of Yili Company's attempt to hold an interim shareholders' meeting to amend the company's articles of association and add anti-takeover clauses through the resolution of the board of directors,and the other is the case of suspected violation of the relevant articles of Haili Biology Charter of Shanghai Investment Center.Then,the listed companies that have been supervised and questioned in recent years for adding anti-takeover clauses in the Charter are selected.The articles of association are taken as samples to analyze and summarize the common types of anti-takeover clauses in China.This paper introduces these anti-takeover clauses into two categories.In the second chapter,through comparative analysis,the emphasis is to draw the boundaries of autonomy of company charter by comparing Haili Biology and the additional anti-takeover clauses adopted by Yili Company in the face of potential hostile takeover.Subsequently,the legitimacy of these two categories of provisions is analyzed,and the individual provisions are qualitatively analyzed through the legitimacy analysis.Then the purpose of this article is drawn from the comparative analysis,that is,to explore how to regulate the Anti-takeover provisions in the articles of association of listed companies so as to enable them to conduct anti-takeover actions under the premise of legitimate compliance.Then,by investigating the review criteria and relevant legal systems of anti-takeover clauses in publicity charters abroad,this paper analyses the experience of the three countries and their lessons for our country.According to the existing corporate governance concept,the author puts forward his views on the review and supervision of anti-takeover clauses of our listed companies,hoping to improve the legislative system,strengthen administrative supervision and exercise the right to hold shares in investment centers,etc.To regulate the Anti-takeover clauses in the articles of association.By putting forward the author's specific system design suggestions for the legal regulation of anti-takeover behavior in China,we hope to be helpful in the top-level design in the future.Through this article,the author wants to convey a point of view,that is,to suggest that legislation can attach importance to the review and supervision of anti-takeover provisions in the articles of association of listed companies,promote the establishment of the system,and effectively achieve the purpose of protecting the majority of small and medium-sized investors from the acquisition activities.