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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 of mergers and acquisitions in our country, hostile mergers and acquisitions are increasing day by day, litigation has been triggered around the legal liability of violating the obligation of large-sum shareholding declaration. At present, theory and practice circles have not reached a unified opinion on their applicable basis and content explanation . Through the legal hermeneutical analysis of the relevant provisions, it can be found that the Securities Law provides only limited administrative liability for the breach of the obligation to declare large shareholdings. Completion of the amendment means that the supplementary disclosure and administrative sanctions are completed. The imbalance between the illegal gains and legal responsibilities has caused the “barbarians at the gate” to repeatedly repeat the raid. The sanctions against such acts under the securities law should not only consider the relief of the rights infringed by the parties, but should also be based on the overall order of the securities market. Therefore, the legal liability should be set based on the elimination of the illegal gains of offenders . As to the illegal act of violating the obligation of declaration of large amount of shareholding in the company’s acquisition, our country should choose the pattern of valid but limited voting rights on the determination of its reasonable legal liability, but the degree of restraint should be more restrained And set it as an administrative responsibility. This represents a more flexible solution than the practice of forcibly reducing the shareholding ratio by a very large margin.