韩国少数股东强制挤出制度及其对中国的借鉴 - 兼论中国《证券法》(修订草案) 第122条 -

Abstract

Modern corporation laws generally approve the squeeze-out system of minority shareholders in order to grant the buyers the whole acquisition pathways, cut operating cost, and improve operating efficiency. In response to both the interests of controlling and minority shareholders, the system includes squeeze-out right of controlling shareholders and sell-out right of minority shareholders. After studying relevant legislations of Germany, England and America, South Korea stipulated the squeeze-out system in its commercial law in 2011. However, China has not regulated the overall system. In its Securities Law(2014 Amendment) the Article 97 says “Upon the expiration of a term for acquisition, where the share distribution of a target company fails to meet the requirements of listing, ……, the shareholders that still hold the shares of the target company have the right to sell their shares in light of the equal terms as stipulated in the relevant tender offer.”, which seems quite not thorough. This stipulation is very similar to the minority shareholders’ squeeze-out right, yet it didn’t grant controlling shareholders the sell-out right. Observing recent years’ legislative trend, we can see that China may import squeeze-out system in the coming years. In 2014, in one of CSRC’s formal exposure drafts the commission already proposed that the system should be integrated in the articles which regulate listed company’s active delisting. Some articles in Securities Law(2015 Draft) of China also proposed the system’s ideology, yet those articles are too humble and some concepts including the concept of Non-Affiliated Shareholders are not quite clear, which subsequently may lead to difficulties in judicial application. Besides, seen from the perspective of its values, the squeeze-out system may not be necessarily applicable to the acquisition of listed company. Nevertheless, after the emergence of legislative and judicial experience, the Company Law of China can fully stipulate the system in its regulation. The research studies and comments on Securities Law(2015 Draft), and gives advice on a full import of squeeze-out system in the Company Law of China.