管制外溢效应下的监管博弈——基于同方股份换股与现金合并壹人壹本的案例分析

Supervision Game on Regulation Spillover Effect:A Case Study of THTF's Acquisition of EBEN

本文以同方股份换股与支付现金合并壹人壹本为例,深入分析证监会能否以其自由裁量权力"过滤"上市公司向关联方输送利益,侵害中小投资者的行为。结果表明,在我国相关法律制度缺失与司法执法效率较低的背景下,当上市公司意图在重组过程中向关联方输送利益时,证监会会以其在审核过程中的自由裁量权实施柔性监管。这种管制权力的外溢能够在一定程度上减轻上市公司关联方对中小投资者的侵害程度,但囿于证监会的行政监管只是投资者保护法律缺位时的一种替代,加之上市公司本身具有的博弈能力,难以完全遏止侵害行为的发生。以此为基础,本文进一步发现,资本市场能够有效识别上市公司向关联方的利益输送行为与证监会的管制外溢效应。

Based on the theory of law and finance proposed by LLSV, legal environment is a very important determinant in the development of capital market, which cannot answer the Chinese riddle of the co-existence of low-level legal system and high economic growth. In spite of the prosperity of capital market in China, listed companies are always confronted with the poor legal environment of incomplete law and inefficient law enforcement, which leads to the frequent occurrence of expropriations between related party and minority shareholders. As one of the most important regulators, CSRC contributes to the decrease in expropriations of capital market by using the preapproval power given by the legal system. This article takes the case of THTF＇s acquisition of EBEN as an example to analyze how CSRC hinders expropriations of listed companies with the pre-approval power to protect minority shareholders. Firstly, this paper theoretically analyzes the relationship between regulation and legal system. Regulation of CSRC is an effective substitute for the lack of laws protecting investors, and elastic regulation helps protect the interests of minority investors. Additionally, using the public information of related party of THTF, this paper quantifies the expropriation degree of related party and the protection degree of regulatory spillover effect of CSRC from the perspective ofinformation disclosure, which provides direct evidence for the view that related party infringes the interests of minority investors, but constrained by regulatory measures. Finally, the paper further finds that the capital market can identify expropriations of related party and elastic regulation of CSRC. The results suggest that under the circumstances of incomplete law and inefficient law enforcement, CSRC will use its discretion to implement elastic regulation if listed companies transfer interests to related party in assets reorganization. The regulatory spillover effect on expropriations is considerably efficient to some extent, which prevents minority shareholders from being infringed by listed companies and related party. But because of a certain effect of regulation being a substitute of incomplete law, and the game capacity of listed companies, it is difficult for CSRC to completely eliminate expropriations of capital market in China.