The appraisal remedy and merger premiums

The appraisal remedy affords corporate shareholders the optionto redeem their shares for cash in the event of certain transactions,including mergers. Access to appraisal for publicly traded shares,however, differs from state to state. We present the first large-sampleempirical study of the effect of appraisal rights on targetshareholder gains from acquisitions. We examine 1,350 mergersinvolving publicly held firms. We find some evidence that appraisalreduces average shareholder gains in transactions involvingself-interested managers. For the entire sample, however, wefind no evidence that appraisal has any effect, positive ornegative, on target shareholder gains from takeovers.     

Does Control Make a Difference? The Moral Foundations of Shareholder Liability for Corporate Wrongs

The doctrine of limited liability, as traditionally understood, prevents shareholders from being held personally liable for corporate wrongs. Several authors have recently argued that the doctrine should be modified to make some or all shareholders individually liable for torts committed by corporations in which they hold shares. This article distinguishes three types of argument that might provide a moral basis for shareholder liability in such cases. I contend that while these arguments support holding at least some shareholders liable for corporate torts, they fail to justify a general regime of unlimited pro rata shareholder liability. The level of control shareholders exercise over a company makes an important difference to their moral duties to compensate victims of corporate wrongdoing.     

论表决权信托——以小股东利益保护为背景展开的研究

公司控制权的存在,使控制股东可获得大于其股权比例的收益,转移、减少其相应的风险,实现其利益的最大化。表决权是争夺控制权的基本工具,中小股东的表决权往往只是一种抽象的存在,在控制权争夺中其表决权的作用不能充分实现,其利益容易受到损害。表决权信托通过对表决权的重新安排,为中小股东利益保护提供了一个较好的外部机制。     

No derivative shareholder suits in Europe: A model of percentage limits and collusion

We address one of the cardinal puzzles of European corporate law: the lack of derivate shareholder suits. We explain this phenomenon on the basis of percentage limits which require shareholders to hold a minimum amount of shares in order to bring a lawsuit. We show that, under this legal regime, managers will collude with large shareholders by means of settlements or bribes that impose a negative externality on small shareholders. Contrary to conventional agency models, we find that large shareholders do not monitor the management; as a consequence, there is no free riding opportunity for small shareholders.     

Disputes about corporate expression absorption and their legal remedies

Corporate expression is the expression that a company gives to the outside in its capacity as a legal entity. Often referring to resolutions made by shareholder meetings and the board of directors, based on good faith and bound by contractual spirit, a company must be held liable for its expression. Corporate expression absorption refers to the corporate behaviors and situations wherein the majority voting shareholders and directors replace the will of the minority voting shareholders and directors within their own will. Among them, the majority voting shareholders at a shareholders’ meeting (shareholders’ general meeting) are decision-making shareholders, and directors, managers and other senior management staff that decide corporate affairs are called decision-making members. Corporate expression absorption consists of two sorts: absorption by shareholders’ meeting and absorption by the board of directors. Shareholders’ meeting is a company’s authoritative organization; when the voting rights of some shareholders exceed the statutory limit, they will be able to manipulate the expression of shareholders’ meetings and replace the will of other shareholders with that of their own. The expression absorption by the board of directors refers to the practice wherein the majority directors decide on important corporate matters in accordance with the majority rule. Thus, it can be seen that the corporate expression absorption is a double-edged sword, not only capable of uplifting operational efficiency but also likely to help decision-making shareholders achieve personal gains and transfer corporate interests. As for the disputes of corporate expression absorption, the following legal remedies might be adopted: (1) Limit the voting rights of decision-making shareholders. (2) Provide shareholders with veto power over specific events. (3) Ask the chambers of commerce (industry associations) to arbitrate specific events. (4) Preserve the market value of shares held by dissenting directors. (5) Expand cumulative voting; (6) Provide shareholders the right to exit. (7) Legal remedies for corporate deadlock. (8) Shareholders’ derivative lawsuits. __________ Translated from China Law, No. 4, 2005     

论证券投资基金所持股份之表决权的行使

证券投资基金所持股份之表决权理应由基金管理人代表基金份额持有人自由行使,但由于证券投资基金持股数额一般较大,且该表决权的行使具有权义复合性和双重共益性,故基金管理人在行使基金持股之表决权时应尽忠实、勤勉义务。建议我国立法对基金持股之表决权进行一定的规制,以维护基金份额持有人的利益,并更好地发挥基金作为机构投资者在股份公司治理中的作用。     

美国法上的异议股东股份评估权制度对我国的借鉴意义

异议股东股份评估权的存在,不是为了督促多数股东恪尽忠实义务,保护少数股东的利益免受公司管理层的非法侵害,而是为了协调不同股东对交易的不同风险偏好,促使公司从事提升全体而不是部分股东利益的交易。从这个角度出发,异议股东股份评估权应适用于上市公司和非上市公司,应赋予表决权股东,不应具有排他性。     

公司法股权转让与股东资格取得关系探讨——以(2009)皖民二终字第0011号判决为素材

股权受让人在股权转让后是否直接取得股东资格而成为股东,现行法律规定并不明确。发生股权转让后公司尽管有义务变更股东名册和工商登记,但只在股权受让人将股权转让的事实通知公司后,才产生公司的变更义务。通知公司后即产生变更义务。在公司实务中,股权出让人在出让股权前向其他股东发出的通知有时可以认定为通知公司,应该结合具体案情综合判断。股东名册法理上的对抗效力与明文规定的工商登记的对抗效力相互矛盾,而且只有公司才能申请变更登记,这会影响股权受让人股东资格的取得,损害股权转让双方及其债权人的利益。     

Corporate Governance in Spain (with an Application of the Power Indices Approach)

This paper describes the governance system of Spanish listed firms in the early 1990's. Although the institutional setting of the Spanish Stock Exchanges differs little from other European national markets, we found important differences in several aspects of corporate governance. In particular, some of the standard mechanisms of control (e.g. boards and institutional shareholders) do not play an active role, whereas ownership is relatively concentrated. Moreover, power indices suggest that controlling blocs of large shareholders are very likely to form. We thus conclude that the ownership of shares is a pivotal mechanism in the governance of Spanish corporations.     

论控制股东对公司债权人的诚信义务及法律责任

我国在经济转轨时期,大部分公司股权相对集中,存在着控制股东现象,由于控制股东持有大比例的公司表决权股份,具有控制公司股东大会和操控公司经营管理层的能力.随着股东控制权的滥用,公司控制股东侵害公司和债权人利益以及其他股东利益的现象不断出现,这时我国加强公司治理,建立控制股东制约机制提出了迫切的要求.由于公司形式多样,受控制股东影响的公司利益相关者众多,本文将研究视角局限在我国股份公司中的债权人保护上,提出在股份公司中,控制股东应对公司的债权人承担诚信义务,以免发生侵害公司债权人利益的事情.     

The Role of Competition in Determining Corporate Governance Outcomes: Lessons from Australia's Corporate Governance System

Successive waves of corporate collapse in every decade of Australia's history suggest that there is a significant unresolved corporate governance problem in Australia. Corporate collapse has been followed by reform but with little effect on the overall pattern of collapse and reform every decade. This article suggests that one of the elements which entrenches corporate governance problems in Australia is the competitive environment in which companies operate, which currently is not regulating management. It is argued that this anti-competitive environment has two significant effects. First, key shareholders have retained controlling blocks of shares as the benefits of control and the costs of unconstrained management are high in such distorted markets. Secondly, management skills have stagnated, so that bad management and regular management failure have become features of the corporate governance system.     

Share and Share Alike? Hedge Funds,Human Rights,and Owning Enterprise in Britain

This article explores the meanings of ownership and shareholding in the context of the 2007 run on Northern Rock, its subsequent nationalization in 2008, and the resulting legal challenge brought by former shareholders. Drawing on evidence from a range of sources outside traditional legal and official doctrine, and from original empirical research, it focuses on the perspective and voices of local small individual shareholders in relation to shareholding, bank failure, and government responses to financial crisis. It tells the story of these individual shareholders against differing conceptions of share ownership rights and responsibilities, and from various angles, to show the many different subjectivities of corporate shareholding and ownership of enterprise of which orthodox legal and economic models take scant account. It concludes on a note of historic persistence in demand for proprietary shares in banking institutions, despite the differing levels of understanding and tolerance of equity risk among shareholders that our research reveals.     

设立全资子公司的法律规制

全资子公司的设立原是企业多元化发展的战略要求,却成为控股股东侵害公司及小股东的工具.个中原因不乏公司法律制度在预防机制上对全资子公司的忽视以及部门规章的效力等级不足,在救济机制上又集体失效.应将设立全资子公司的列为股东会特别决议事项,赋予公司登记审查机关以审查职责;穿越规则对公司法人格并无实质影响,可积极引入事先预防与事后救济.     

股东表决权:公司所有与公司控制的连接点

美国学者Berle和Means于1932年系统地分析了在公众公司中存在的公司所有与公司经营相分离的现象后,在经济学和公司法学中都产生了重大的影响。根据该理论,在公众公司中的股东对经营层失去了控制,表决权也没有任何意义了。对此,基于所有权结构的有效性分析,本文认为股东对管理层并没有失去控制,而是由某一个或者几个大股东控制着公司。在两权分离过程中,表决权扮演着极为重要的角色,它是公司所有与公司经营的连接点。它不但维系和控制着公司所有者与经营者的关系,还是不同股东之间争夺公司控制权的工具,是控制股东对中小股东进行控制的工具。为了顺应这一工具主义趋势,表决权与股份之间出现了分离倾向的同时,表决权本身也出现了客体化趋势,在表决权的救济上也已经从损害赔偿为主的救济方式走向了撤销公司决议为主。     

Why Shareholders Shouldn't Vote: A Marxist‐progressive Critique of Shareholder Empowerment

This paper argues that liquidity, short‐termism and low involvement in corporate governance are fundamental ingredients of shareholders’ value maximisation strategies. Neither shareholders nor their representatives will voluntarily adopt restrictions which inhibit their ability to pursue these strategies, such as those presented by the Stewardship Codes. Utilising Marxist and progressive theory this paper evidences the tendency for all capital (including shares) to seek liquidity. It presents historical evidence which shows that political policy can either restrict this tendency, as it did in the progressive and post war period, or facilitate it, as it did in nineteenth century England and in the current neoliberal period. The shareholder empowerment initiatives examined in this paper are therefore best understood as strategies to justify shareholder claims in the current crisis and to thereby protect the neoliberal status quo.     

Shareholder Coordination Costs, Shark Repellents, and Takeout Mergers: The Case Against Fiduciary Duties

When a bidding corporation succeeds in obtaining voting control of a target corporation through a hostile tender offer, many commentators argue that it is unfair to allow the bidder to exercise its voting power to set the price terms of a second-step takeout merger in which the bidder purchases the shares of the remaining target shareholders. This concern is inappropriate because it treats a unitary acquisition between adversaries as if it were two separate transactions–the second of which involves abuse of power by fiduciaries–and also because it assumes that shareholders of the target corporation are incapable of protecting themselves from the power of a successful bidder. Moreover, imposition of fiduciary rules may impose either prohibitive costs or absolute barriers to some takeovers, even if such transactions would be wealth producing. While there is a risk that some takeovers may exploit the “prisoner's dilemma” facing target shareholders threatened with an unattractive takeout threat, target shareholders are capable of responding to that threat with devices to coordinate their response. So-called “shark repellent” amendments that raise the proportion of votes required to approve second-step mergers or that limit the terms of such mergers can function as coordination devices to alleviate the prisoner's dilemma. Commentators' fears that such devices may unduly burden the market for corporate control appear to depend to a large extent on unfounded assumptions that all takeovers are wealth producing and that takeovers are never motivated by potential gains flowing from exploitation of the lack of coordination among target shareholders. However, empirical studies indicate that adoption of such coordination rules can benefit target shareholders and that it is unlikely that shareholders will approve voting rules so restrictive that they would preclude wealth-creating acquisitions. The usual notions of shareholder apathy are simply inapplicable to takeout mergers.     

反对股东股份收购请求权研究

我国于2005年修订的《公司法》,其中一个重要的内容就是增加了反对股东的股份收购请求权,即在公司结构发生重大变化时,反对股东可以在选择获得合理的经济补偿后退出公司结构业已发生重大变化的公司。有必要对我国反对股东股份收购请求权的演进过程以及相关实体法问题进行研究。     

少数股东保护的新进路：少数股东股份的优先股化

公司少数股东权益的保护属世界性难题,现有保护方法具有这样或那样的不足。在特定情况下,将公司少数股东持有的股份部分或者全部转化为累积参加优先股,以其对公司重大事务实质上已经不产生任何影响力的表决权,换取较高的投资回报,从而对少数股东加以切实的保护。     

论公司的社会责任

公司不仅要为股东营利,而且要对社会承担法律责任和道德责任。正确处理公司社会责任与公司营利性之间的关系是界定公司社会责任含义的关键。公司社会责任理论是对股东利益最大化这一理论的修正和补充。我国应当从不同的角度对公司社会责任立法进行完善。