The dislocation and reform of the regulatory mode of hostile takeover
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D922.287;D926;D922.291

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    Abstract:

    Currently, the repressive regulatory mode of hostile takeover in China-"supervised by the Securities Regulatory Commission, supplemented by judicial intervention" shows failure, which is specifically characterized by the passive and hasty supervision of administrative organs and the weak response of judicial organs. The reason is the structural dislocation of the regulation mode of hostile takeover in China. The legal regulation mode can be deconstructed into three types:the repressive regulatory mode, the autonomy regulatory mode and the responsive regulatory mode. Among them, the responsive regulatory mode ought to be the mode of legal regulation of hostile takeover. This is because hostile takeover has natural uncertainty and complexity, while flexible and timely responsive legislation, reform and abolition rules or judges' innovative judgment can respond to the demands of hostile takeover. Therefore, the regulation mode of hostile takeover in China should transform from the repressive regulatory mode to the responsive regulatory mode. From the perspective of comparative law, the responsive regulatory mode presents two types:judicial regulatory mode and self-regulatory mode, and the latter can be divided into two types:complete self-regulatory mode and incomplete self-regulatory mode. In China, moving towards the incomplete self-regulatory mode is the better choice, and the reasons are as follows:firstly, the cost and obstacles of judicial system reform are large, and it is difficult to transform into a real judicial regulatory mode. Secondly, there are very few institutional investors in China, which makes the basis for the formation of complete self-regulatory mode not available. Thirdly, the complete self-regulatory mode has the inherent disadvantages of lack of coercive force. Specifically, China can learn from the experience of Britain and Australia to build an incomplete self-regulatory mode with Chinese characteristics. First of all, the common interest demands to promote the overall welfare of the society should be established. Under the guidance of this concept, China can build an mergers and acquisitions team, which is led by the Securities Regulatory Commission and are made up of stock exchanges, Securities Investor Services Center, securities companies, fund companies, lawyers' associations and accountants' associations. Secondly, an institutional framework to promote substantive justice should be built. Specifically, on the one hand, in order to clarify the division of labor and form internal constraints, it is suggested to set up multiple committees with different functions and powers within the mergers and acquisitions team. On the other hand, the mergers and acquisitions team should not only stick to laws and regulations in the decision-making process, but also flexibly adopt diversified decision-making methods. Finally, the procedural operation standard system should be shaped. Specifically, first, the rule making procedure should reflect flexibility and democracy, make it clear that the rule committee can modify relevant rules at any time under special circumstances, and should widely listen to the opinions of member representatives. Second, the dispute decision-making procedure should be open and the decision should be made in simple written form. The third is to improve the hearing procedure and appeal procedure. For the latter, it is suggested that the merger and reorganization review committee should also serve as the appeal committee in the future. Fourth, the judicial review procedure should be established and the "principle of non-interference" should be clarified.

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史欣媛.敌意收购规制模式的错位及其改造[J].重庆大学学报社会科学版,2022,28(3):254~268

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  • Online: July 04,2022
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