股份交换法律问题研究

发布时间：2018-06-09 15:00

本文选题：公司并购 + 股份交换　；参考：《华中师范大学》2013年硕士论文

【摘要】：在经济全球化的今天,国际并购高潮不断涌现,但在我国的并购实践中,多以现金作为支付对价,融资结构极其单一,资金的缺乏使得我国公司重组形式的选择大受限制。反观外国,其并购手段的丰富和灵活是我们难以企及的,尤其自20世纪以来,股份交换的发展尤其亮眼,作为一种新兴的并购手段,股份交换以增发新股作为支付对价,极大地减轻了大型企业参与国际并购的资金压力,且目标公司的法人人格得以保留,仅与母公司建立以股份为连结的控制关系。近年来,我国对股份交换的民间探索日益增多,2004年是我国企业并购的高速发展之年。为实现横向一体化战略,我国个人电脑市场的领军企业联想集团于2004年底以17.5亿美元的现金、股票及债务承担的混合资产收购了美国IBM公司全球的PC电脑业务。然而,在我国“以股易股”作为并购支付方式的合法性并没有法律的确认。根据《关于外国投资者并购境内企业的规定》第27和28条,跨境换股系指境外公司的股东以其持有的股权购买境内公司股东的股权,或境外公司以其增发的股份,购买境内公司增发股份的行为。在该规定中,股份作为一种特殊的支付手段得到了认可。但该规定的适用范围较小,作为并购的外国公司必须是上市公司,与国外的股份交换无法比拟。为此,我国少数学者开始了对股份交换的研究,本文也期望为早日引进股份交换作出微薄努力。第一部分是股份交换制度的界定与价值。主要论述了美国的三角合并与倒三角合并、日本的股份转移制度及我国台湾地区的股份交换,并在此基础上得出自己对股份交换的理解。为夯实股份交换的理论基础,后文紧接着论述了股份交换的价值、性质及法律基础。第二部分是股份交换的程序构建,主要涉及立法论的探讨。笔者认为股份交换的一般程序主要包括股份交换合同的做成、股东会特别决议的通过、股份交换信息公开和股份交换的生效。为进一步提高并购实践的效率,本文仿照美国和日本的立法,设置了简易股份交换程序和略式股份交换程序,以期达至制度设计之衡平。第三部分是股份交换中中小股东利益的保护。中小股东的保护历来是公司法中的重大理论课题,股份交换通过资本多数决原则实现了对少数股东的强制。为此,本文设置的具体保护措施包括信息取得权的保护、异议股东股份回购请求权、股份交换无效之诉等手段。第四部分是债权人的保护,对一般债权人和特殊债权人作出区分,具体措施包括知情权的保障、股份交换无效之诉和揭开公司面纱追究母公司的责任。最后一部分为结论,提出文章的观点和不足之处。
[Abstract]:In today's economic globalization, the tide of international M & A has been emerging, but in the practice of M & A in our country, the cash is used as the payment consideration, the financing structure is extremely single, and the lack of funds greatly restricts the choice of the form of corporate reorganization in our country. On the other hand, in foreign countries, the rich and flexible means of mergers and acquisitions are beyond our reach. Especially since the 20th century, the development of share exchanges has been particularly bright. As a new means of mergers and acquisitions, the exchange of shares takes the issuance of new shares as the payment consideration. It has greatly reduced the financial pressure on large enterprises to participate in international mergers and acquisitions, and the corporate personality of the target company has been preserved, with only sharehold-linked control relations established with the parent company. The folk exploration of stock exchange in China is increasing day by day, and 2004 is the year of rapid development of M & A in our country. In order to realize the horizontal integration strategy, Lenovo Group, the leading company in the personal computer market in China, acquired the global PC business of the United States IBM Company at the end of 2004 for $1.75 billion in cash, stock and debt bearing mixed assets. However, there is no legal confirmation of the legality of "share swap" as the mode of M & A payment in China. According to articles 27 and 28 of the provisions on the merger and acquisition of domestic Enterprises by Foreign investors, cross-border stock exchange refers to the shareholders of a foreign company buying shares in a domestic company with their equity holdings, or the shares issued by a foreign company with its additional shares, The purchase of additional shares of a domestic company. In this regulation, shares as a special means of payment has been recognized. However, the scope of application of this provision is relatively small, foreign companies as M & A must be listed companies, which can not be compared with foreign stock exchange. This article also looks forward to the early introduction of share exchange to make modest efforts. The first part is the definition and value of stock exchange system. This paper mainly discusses the American triangle merger and reverse triangle merger, the Japanese stock transfer system and the stock exchange in Taiwan area of our country. On this basis, the author draws his own understanding of the stock exchange. In order to consolidate the theoretical basis of stock exchange, this paper discusses the value, nature and legal basis of stock exchange. The second part is the procedure construction of stock exchange, mainly involves the discussion of legislation theory. The author thinks that the general procedure of stock exchange mainly includes the making of the contract of share exchange, the adoption of special resolution of shareholders' meeting, the publicity of information of stock exchange and the effectiveness of stock exchange. In order to further improve the efficiency of merger and acquisition practice, this paper imitates the legislation of the United States and Japan, and sets up the simple stock exchange procedure and the strategic stock exchange procedure, in order to reach the balance of the system design. The third part is the protection of the interests of minority shareholders in stock exchange. The protection of minority shareholders has always been an important theoretical subject in the company law. Stock exchange has enforced minority shareholders through the principle of capital majority decision. For this reason, the specific protection measures set up in this paper include the protection of the right to obtain information, the right to ask for share repurchase by dissenting shareholders, and the litigation of invalid exchange of shares. The fourth part is the protection of creditors, and makes a distinction between general creditors and special creditors. The specific measures include the protection of the right to know, the litigation of invalid share exchange and the lifting of the corporate veil to investigate the responsibility of the parent company. The last part is the conclusion, put forward the point of view and deficiency of the article.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91

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