公司收购中违反大额持股申报义务的法律责任——基于“上海新梅案”的分析例证

Legal Liabilities on the Violation of Report on a Large Number of Holdings Shares on the Takeover of Listed Company——Based on “Shanghai Xinmei Case”

随着我国上市公司并购浪潮的到来,敌意并购愈益增多,围绕违反大额持股申报义务的法律责任已一再引发诉讼,而目前理论和实务界在其适用依据、内容解释上都尚未达成统一意见。通过对相关条文的法解释学分析,可以发现《证券法》对违反大额持股申报义务的行为仅规定了有限的行政责任,改正完成即是指补充披露与行政处罚完毕。违法收益与法律责任的失衡,造成"门口的野蛮人"突袭事件一再重演。证券法视域下对此种行为的制裁,不仅应考虑当事方受侵害的权利救济,更应立足于证券市场的整体秩序,所以应以消除违规者的非法获益为基准设定法律责任。对于公司收购中违反大额持股申报义务的违法行为,在其合理法律责任的确定上我国应选择违规的股票买入有效但表决权受限的模式,但对限制的程度应持较为克制的态度,并将之设定为一种行政责任。这相对于强制减持超比例持股的做法来说,不失为一种更为柔性的解决方案。

With the arrival trend of mergers and acquisitions in Chinese listed companies,hostile takeovers increasingly grow. The violations of the report and announcement on a large number of holdings shares have repeatedly triggered litigations. However, it hasn＇t reach a consensus on application and explanation, neither in theory nor in practice. Through the legal explanation learning, the violation of reporting and announcing on a large number of holdings shares only leads to limited administrative responsibilities in Securities Law of the People~ Republic of China. So ＂correction＂ means completion of remedial disclosure and completion of administrative punishment. The imbalance between illegal gains and legal liabilities results in ＂Barbarians at the Gate＂ again and again. In the horizon of Security law, the sanctions to~ legal liabilities on the violation of warning on holding a large number of shares in takeover of listed companies, should be more based on the securities market order than the right remedies of the injured party, so that the law is perfected by concentrate on eliminating the offender ＂s illegal benefit. The reasonable determination of legal liability in this issue should choose the model which stock deal is effective but voting rights is limited, meanwhile the limitation which is a kind of administrative responsibilities should be tolerant. Relative to the mandatory shares sale beyond the legal proportion, it is a more flexible solution.