公开股份私募投资的中小股东保护

The Protection of Minority Shareholders in Public Equity Private Investment

公开股份私募投资当前发展迅速,但是极易损害中小股东利益,我国立法与执法实践对此尚未关注。英属维京群岛的司法实践采取了对于董事的主观目的进行实质性判断的方式,但并不符合我国司法传统,也过于严苛。我国对于公开股份私募投资的中小股东保护总体有两种思路:一是《公司法》立法上放开股份回购之诉的限制条件,给予中小股东充分的起诉渠道;二是从监管层面上基于中小股东保护,如强制在PIPE协议中设置相应的保护条款、要求对中小股东保护的内容进行信息披露等。

At present, Private Investment in Public Equity(PIPE) is developing rapidly, but it has the natural characteristics that it is easy to cause damage to the rights and interests of minority shareholders, which has not been paid attention to in the legislation and law enforcement practice of our country. From the judicial practice of the British Virgin Islands, it adopts the way of substantive judgment on the subjective purpose of the directors, but it does not accord with the judicial tradition of our country, and it is too harsh. In China, there should be two ways to protect minority shareholders in PIPE, one is to liberalize the restrictions on share repurchase litigation in the legislation of the Company Law, based on the sufficient litigation channels of minority shareholders, and the other is based on the protection of minority shareholders from the regulatory level, such as forcing the establishment of corresponding protection clauses in the PIPE agreement, requiring the disclosure of information on the protection of minority shareholders and so on.