上市公司合并中異議股東回購請(qǐng)求權(quán)研究
發(fā)布時(shí)間：2019-06-21 08:08
【摘要】：近幾年來,我國(guó)上市公司合并案例日益增多,尤其以換股方式進(jìn)行合并避免了大量的現(xiàn)金流,節(jié)約了交易成本,成為上市公司合并的趨勢(shì)。然而,在上市公司合并過程中,異議股東的利益往往遭到漠視甚至損害�？v觀各國(guó)立法與實(shí)踐,主要是通過信息披露制度、控股股東的誠(chéng)信義務(wù)、異議股東回購請(qǐng)求權(quán)制度對(duì)上市合并中的中小股東提供保護(hù),其中異議股東回購請(qǐng)求權(quán)制度是上市公司合并中的中小股東利益的重要手段。我國(guó)現(xiàn)行《公司法》雖然規(guī)定了異議股東回購請(qǐng)求權(quán)制度,但是其規(guī)定內(nèi)容過于簡(jiǎn)陋,不能對(duì)公司實(shí)踐提供可行的法律引導(dǎo)與規(guī)制。本文則是從我國(guó)上市公司實(shí)踐出發(fā),運(yùn)用實(shí)證分析、比較分析、價(jià)值分析、經(jīng)濟(jì)分析等研究方法,以我國(guó)兩個(gè)上市公司合并案例為切入點(diǎn),對(duì)上市公司換股合并過程中異議股東回購請(qǐng)求權(quán)制度進(jìn)行研究。 本文除引言和結(jié)論外共分四部分: 第一部分,結(jié)合已給案例,提出我國(guó)上市公司合并中有關(guān)行使異議股東的回購請(qǐng)求權(quán)存在的焦點(diǎn)問題,即如何確定回購請(qǐng)求權(quán)的權(quán)利義務(wù)主體范圍?如何確定異議股東回購請(qǐng)求權(quán)的行使程序?如何進(jìn)行回購股份價(jià)格評(píng)估? 第二部分,主要探討我國(guó)上市公司合并中回購請(qǐng)求權(quán)的權(quán)利義務(wù)主體范圍問題,即適用股東范圍和回購義務(wù)主體范圍。我國(guó)公司立法對(duì)此沒有明確規(guī)定,導(dǎo)致公司實(shí)踐中界定混亂,損害了中小股東的利益。在適用股東范圍方面,國(guó)外立法主要有兩種立法例,即一種僅包括被合并方的異議股東,另一種包括合并雙方的異議股東。在回購義務(wù)主體方面,也有兩種立法例,即一種認(rèn)為只有公司才具有回購義務(wù),另一種認(rèn)為公司和控股股東都有回購義務(wù)。筆者認(rèn)為,應(yīng)當(dāng)賦予合并雙方的異議股東平等的回購請(qǐng)求權(quán),且應(yīng)僅當(dāng)把公司都列入回購義務(wù)主體范圍,控股股東不應(yīng)承擔(dān)回購義務(wù)。 第三部分,主要探討我國(guó)上市公司中異議股東回購請(qǐng)求權(quán)的行使程序問題。在異議股東回購請(qǐng)求權(quán)的行使程序方面,我國(guó)公司立法嚴(yán)重缺漏,實(shí)踐中上市公司各行其是,不利于異議股東利益的保護(hù)。國(guó)外立法一般都對(duì)此有明確的規(guī)定。筆者主張,應(yīng)由立法明確并細(xì)化異議股東回購請(qǐng)求權(quán)的行使程序,具體程序應(yīng)包括如下環(huán)節(jié):(1)公司的告知義務(wù);(2)異議股東提前做出反對(duì)通知;(3)異議股東在股東大會(huì)上不投贊成票;(4)公司通知股東決議結(jié)果和行使權(quán)利的程序;(5)股東提出行權(quán)請(qǐng)求;(6)公司確定并公開股權(quán)回購價(jià)格;(7)價(jià)格異議救濟(jì);(8)支付價(jià)款。 第四部分,主要探討我國(guó)上市公司合并中回購股份價(jià)格評(píng)估問題。即圍繞價(jià)格確定主體、價(jià)格評(píng)估方法、司法評(píng)估程序三個(gè)方面內(nèi)容進(jìn)行探討。筆者認(rèn)為,我國(guó)立法宜采由上市公司確定回購股份價(jià)格,股東對(duì)價(jià)格有異議,可以和公司進(jìn)行協(xié)商,協(xié)商不成再由股東或公司啟動(dòng)司法評(píng)估程序的綜合協(xié)調(diào)確定價(jià)格模式,并提出股份價(jià)格評(píng)估應(yīng)堅(jiān)持的原則。
[Abstract]:In recent years, the combined cases of listed companies in our country have been increasing, especially in the exchange of shares, so that a large amount of cash flow is avoided, the transaction cost is saved, and the merging trend of the listed companies is made. However, in the course of the merger of listed companies, the interests of the dissident shareholders are often ignored or even damaged. Throughout the country's legislation and practice, it is mainly through the information disclosure system, the credit obligation of the controlling shareholder, and the system of right of objection to the shareholder's back-back to provide protection to the small and medium-sized shareholders in the listing merger, Among them, the system of the right to buy back of the objection is an important means of the interests of the small and medium-sized shareholders in the merger of the listed company. In our country, the company's company law has set out the system of the right to buy back of the dissenting shareholders, but its contents are too simple to provide the feasible legal guidance and regulation to the practice of the company. This paper, based on the practice of listed companies in China, uses the methods of empirical analysis, comparative analysis, value analysis, economic analysis and so on. In addition to the introduction and conclusion, the article is divided into four parts. The first part, in combination with the given case, puts forward the question of the focus on the right to buy back right of the shareholders in the merger of the listed companies in China, that is, how to determine the rights and obligations of the right to buy back Scope of the body? How to determine the line of the objection to the shareholder's right to buy back How to make the program? How to buy back the share price The second part, mainly discusses the main scope of the rights and obligations of the right and obligation of the repurchase right in the merger of the listed companies in our country, namely, the application of the shareholders' scope and the repos; The scope of the main body of the company is not specified in the legislation of our company, which leads to the confusion in the practice of the company and the small and medium-sized enterprises. The interests of the shareholders. In terms of the scope of the applicable shareholders, the foreign legislation mainly has two legislative cases, namely, one that includes only the dissenting shareholders of the merged party, and the other includes the combination of both parties In the case of the main body of the repurchase obligation, there are two legislative cases, namely, one considers that only the company has the obligation to buy back, and the other is that both the company and the controlling shareholder There is the obligation to buy back. The author believes that the right to buy back of the dissenting shareholders of both parties should be given, and only when the company is listed in the main scope of the repurchase obligation, the controlling shareholder shall not bear the right to bear it. The third part mainly discusses the right to buy back of the dissenting shareholders in the listed companies in our country In view of the problem of the exercise of the right of exercise, in the case of the exercise of the right of the shareholder's right to buy back, the company's legislation in our country is seriously deficient, and the listed company in practice is not in favor of the objection. The protection of the interests of the shareholders. The author claims that the procedures for exercising the right to buy back of the dissenting shareholders shall be clarified and refined by the legislation, and the specific procedures shall include the following steps: (1) the obligation of the company to inform the shareholders; (2) the objection to the shareholders to make an objection in advance; and (3) the dissenting shareholders are large in the shareholders. (4) The Company shall not vote in favour; (4) the Company shall notify the shareholders of the process of the resolution of the resolution and exercise the right; (5) the shareholders propose the right to conduct the exercise; (6) the Company shall determine and disclose the price of the share repurchase; and (7) the price objection relief; (8) Pay the price. The fourth part mainly discusses the merger of listed companies in our country The question of the evaluation of the price of the purchase stock. That is, the main body, the price evaluation method and the judicial evaluation program are determined around the price. In the author's opinion, our country's legislation should be determined by the listed company to determine the price of the stock-back share, and the shareholders have no objection to the price, and the shareholders or the company can start the judicial evaluation program. To coordinate and determine the price mode and to put forward a share price
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
本文編號(hào)：2503921
[Abstract]:In recent years, the combined cases of listed companies in our country have been increasing, especially in the exchange of shares, so that a large amount of cash flow is avoided, the transaction cost is saved, and the merging trend of the listed companies is made. However, in the course of the merger of listed companies, the interests of the dissident shareholders are often ignored or even damaged. Throughout the country's legislation and practice, it is mainly through the information disclosure system, the credit obligation of the controlling shareholder, and the system of right of objection to the shareholder's back-back to provide protection to the small and medium-sized shareholders in the listing merger, Among them, the system of the right to buy back of the objection is an important means of the interests of the small and medium-sized shareholders in the merger of the listed company. In our country, the company's company law has set out the system of the right to buy back of the dissenting shareholders, but its contents are too simple to provide the feasible legal guidance and regulation to the practice of the company. This paper, based on the practice of listed companies in China, uses the methods of empirical analysis, comparative analysis, value analysis, economic analysis and so on. In addition to the introduction and conclusion, the article is divided into four parts. The first part, in combination with the given case, puts forward the question of the focus on the right to buy back right of the shareholders in the merger of the listed companies in China, that is, how to determine the rights and obligations of the right to buy back Scope of the body? How to determine the line of the objection to the shareholder's right to buy back How to make the program? How to buy back the share price The second part, mainly discusses the main scope of the rights and obligations of the right and obligation of the repurchase right in the merger of the listed companies in our country, namely, the application of the shareholders' scope and the repos; The scope of the main body of the company is not specified in the legislation of our company, which leads to the confusion in the practice of the company and the small and medium-sized enterprises. The interests of the shareholders. In terms of the scope of the applicable shareholders, the foreign legislation mainly has two legislative cases, namely, one that includes only the dissenting shareholders of the merged party, and the other includes the combination of both parties In the case of the main body of the repurchase obligation, there are two legislative cases, namely, one considers that only the company has the obligation to buy back, and the other is that both the company and the controlling shareholder There is the obligation to buy back. The author believes that the right to buy back of the dissenting shareholders of both parties should be given, and only when the company is listed in the main scope of the repurchase obligation, the controlling shareholder shall not bear the right to bear it. The third part mainly discusses the right to buy back of the dissenting shareholders in the listed companies in our country In view of the problem of the exercise of the right of exercise, in the case of the exercise of the right of the shareholder's right to buy back, the company's legislation in our country is seriously deficient, and the listed company in practice is not in favor of the objection. The protection of the interests of the shareholders. The author claims that the procedures for exercising the right to buy back of the dissenting shareholders shall be clarified and refined by the legislation, and the specific procedures shall include the following steps: (1) the obligation of the company to inform the shareholders; (2) the objection to the shareholders to make an objection in advance; and (3) the dissenting shareholders are large in the shareholders. (4) The Company shall not vote in favour; (4) the Company shall notify the shareholders of the process of the resolution of the resolution and exercise the right; (5) the shareholders propose the right to conduct the exercise; (6) the Company shall determine and disclose the price of the share repurchase; and (7) the price objection relief; (8) Pay the price. The fourth part mainly discusses the merger of listed companies in our country The question of the evaluation of the price of the purchase stock. That is, the main body, the price evaluation method and the judicial evaluation program are determined around the price. In the author's opinion, our country's legislation should be determined by the listed company to determine the price of the stock-back share, and the shareholders have no objection to the price, and the shareholders or the company can start the judicial evaluation program. To coordinate and determine the price mode and to put forward a share price
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前3條
1 劉玉琪;股份回購請(qǐng)求權(quán)制度中價(jià)格評(píng)估法律問題研究[D];華東政法大學(xué);2012年
2 劉海東;換股吸收合并中換股比例及相關(guān)問題研究[D];上海交通大學(xué);2013年
3 李璐;我國(guó)上市公司換股合并中的股東主動(dòng)退出制度研究[D];北京化工大學(xué);2013年
，本文編號(hào)：2503921
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