The Institutional Value and Judicial Application of the Defensive Clause in the Company’s Bylaw

• 발행기관: 원광대학교 법학연구소
• 저자명: Zhang Youmeng(张 右蒙)
• 간행물 정보: 『원광법학』제35권 제2호, 135~159쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

The defensive clause in a company’s bylaw is an important tool against takeover, but its legitimacy has been questioned by the theoretical and judicial fields, and it is manifested in complex and various forms. In terms of institutional value, the defensive clause has a significant effect on maintaining the stability of the corporate governance structure, protecting the legitimate rights and interests of the initial shareholders and the company’s funding and innovation team, ensuring the sound development of market economy, and promoting the establishment of business ethics. In the legislation on defensive clauses, the basic legislative attitude should be to fully respect the company’s autonomy, and to set the necessary limits on the boundaries of its autonomy for different kinds of defense clauses. In judicial practice, basic judicial principles, such as “company autonomy first”, substantive equality, maximizing the company’s interests, and appropriate defense and etc., should be established, to ensure that the company’s acquisition and anti-acquisition are legal and fair and in an orderly manner, under the premise of striking a balance between the social and individual benefits.

목차

Ⅰ. The Institutional Value of the Defensive Clause in the Company’s Bylaw

Ⅱ. An Examination of the Law’s Attitude Towards the Defensive Clause in a Company’s Bylaw

Ⅲ. The Principles in Adjudicating the Defensive Clause in the Bylaw

Ⅳ. Conclusion

키워드

Company’s bylaw Anti-takeover Shareholders’ rights Institutional value Judicial application 公司章程 反收购 股东 权 制度价值 司法应 用