Opening Report of the Master's thesis  Format example

2020.04

 

 

Research on legal issues of

National Economic Security Review of Foreign Capital M & A in China

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contents

1. Thesis outline..............................................................................................................

2.Research significance..................................................................................................

2.1 Theoretical significance.............................................................................................

2.2 Practical significance..................................................................................................

3. Literature review........................................................................................................

3.1 Status of domestic research........................................................................................

3.2 Status of foreign research...........................................................................................

3.3 Summary....................................................................................................................

4.Research content, expected targets and key issues ..................................................

4.1 Research content ........................................................................................................

4.2 Expected targets ........................................................................................................

4.3 Key issues...................................................................................................................

5. Research methods, thesis ideas, data and feasibility analysis................................

5.1 Research methods.......................................................................................................

5.2 Thesis ideas................................................................................................................

5.3 Data............................................................................................................................

5.4 Feasibility analysis.....................................................................................................

6.Research characteristics and innovations.................................................................

7. Research Plan and Expected Research Results ......................................................

7.1 Research Plan.............................................................................................................

7.2 Expected Research Results.........................................................................................

8.Relevant research work that has participated and the progress made..................

8.1 Relevant research work that has participated.............................................................

8.2 the progress made.......................................................................................................

 

 

 

 

 

 

 

 

 

 

 

 

1.Thesis outline

Chapter 1 Foreword

1.1 Research background

1.2 Research significance

1.3 Literature review

1.4 Research ideas and methods

1.5 Research innovations and deficiencies

Chapter 2 Overview of Foreign Capital M & A and National Economic Security

2.1 Overview of Foreign Capital M & A

2.1.1 The definition of “foreign capital mergers and acquisitions” in Chinese law

2.1.2 The status quo and development trend of foreign mergers and acquisitions in China

2.2 Overview of National Economic Security

2.2.1 The concept and characteristics of national economic security

2.2.2 Factors affecting national economic security

2.3 Impact of foreign capital M & A on national economic security

Chapter 3 Status and Problems of National Economic Security Review of Foreign Capital M & A in China

3.1 Current status of the national economic security review of foreign capital mergers and acquisitions in China

3.1.1 Status of legislation

3.1.2 Analysis of typical cases

3.2 Issues of national economic security review of foreign capital mergers and acquisitions in China

3.2.1 Laws and regulations are not systematic

3.2.2 The concept of national economic security is vague

3.2.3 There is overlap with antitrust review

3.2.4 Insufficient supervision after the event

Chapter 4 Improvement of the entity of national economic security review of foreign capital mergers and acquisitions in China

4.1 Establish a complete national security review legal system for foreign capital mergers and acquisitions

4.2 Clarify the scope and standards of the national economic security review

4.2.1 Clarify the scope of national economic security review

4.2.2 Clarify the standards of national economic security review

4.3 Clarify the relationship between economic safety standards and antitrust review standards

4.3.1 Clarify the scope of application of Articles 33 and 35 of the Foreign Investment Law

4.3.2 Economic safety standards can draw on antitrust review standards

Chapter 5 Improvement of the National Economic Security Review Procedures for Foreign Capital M & A in China

5.1 Establish and improve the coordination mechanism of national economic security review and antitrust review

5.1.1 Establish a collaboration mechanism between implementing agencies

5.1.2 Clarify the startup sequence of the two

5.2 Establish a post-event supervision mechanism for national economic security review of foreign capital mergers and acquisitions

5.2.1 Identify the subject and target of post-event supervision

5.2.2 Clarify the path of post-event supervision

5.2.3 Improve the punitive compensation mechanism for post-event supervision

5.3 Improve supporting measures for national economic security review of foreign capital mergers and acquisitions

5.3.1 Establish and improve information reporting system

5.3.2 Establish a regulatory information sharing mechanism

5.3.3 Establish and improve a coordinated supervision mechanism

Chapter 6 Conclusion and Prospect

2. Research significance

2.1 Theoretical significance

For a long time, domestic scholars have conducted extensive research and discussion on the national security review system, most of them have focused on the national security review system in Europe and the United States and its enlightenment to China, as well as the research on the national security review system from a macro perspective Suggestions for the improvement of the basic frameworks such as the examination organs, examination objects, examination standards, examination procedures, and relief mechanisms.

……

2.2 Practical significance

Since the reform and opening up in the 1980s, especially after joining the WTO in 2001, foreign mergers and acquisitions have appeared in front of us as an important way of FDI. According to statistics from the Ministry of Commerce, from January to December 2018, 60,533 foreign-invested enterprises were newly established in the country, an increase of 69.8% year-on-year; the actual use of foreign capital was 885.61 billion yuan, an increase of 0.9% year-on-year, and the actual use of foreign investment reached a record high. In addition, there are nearly 1,700 major projects with a contractual foreign investment of more than US $ 50 million, a year-on-year increase of 23.3%, showing that foreign investors' confidence in China's investment has not diminished. The actual use of foreign capital in the form of mergers and acquisitions increased by 28.4% year-on-year.[1]

……

3. Literature review

3.1 Status of domestic research

Opening to the outside world is China's basic national policy. Through 40 years of reform and opening up, China has become the world's most attractive country for foreign investment, and foreign mergers and acquisitions are a major form of foreign investment in China. Since joining the WTO in 2001, Chinese scholars began to study the national security review system. With the global economic integration and the pace of China's opening up, it has attracted extensive attention from academia.

……

3.1.1 The research status of the national security review system for foreign mergers and acquisitions

3.1.1.1 Before the Anti-Monopoly Law was promulgated

During this period, the research on the legal system of national security review of foreign capital mergers and acquisitions in China was rare, mainly based on the provisions of Article 12 of the Regulations on the Merger and Acquisition of Domestic Enterprises by Foreign Investors.

……

The article Purchase of Investment in the United States and National Security Review written by Professor Huang Jin and others is the earliest article in China that can be retrieved so far to study the legal system of national security review of foreign investment mergers and acquisitions in the United States. The article pointed out that the US law regulating foreign investment mergers and acquisitions is mainly antitrust law, and the Exxon-Florio Amendment is the latest development of US antitrust law. For a long time after this article, there were basically no articles dedicated to the research of this legal system, but only a few introductions in related works and papers. It was not until 2004 that the Chinese Lenovo M & A case encountered harsh national security review in the United States, especially after the CNOOC bidding case was defeated in 2005, the domestic research on the legal system of foreign investment M & A national security review began.

3.1.1.2 After the promulgation of the Anti-Monopoly Law in 2008 and before the promulgation of the Measures for the National Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors in 2011

Since the Anti-Monopoly Law established the national security review legal system in principle, the national security review research on foreign investment mergers and acquisitions quickly rose and became the peak period of this research, and it was more systematic and in-depth and more targeted. These research results focused on system construction, in-depth study of the US national security review system for foreign investment, and the use of comparative analysis methods, using foreign practices to improve China's national security review system. The research results of this period also focused on theoretical elaboration and institutional reference, with few case studies.

 Shao Shaping, Wang Xiaocheng conducted a detailed analysis of the national security review system in the field of US foreign investment mergers and acquisitions in the Analysis of the US National Security Review Legal System for Foreign Investment and Mergers, and studied the basic framework of the US foreign investment merger and acquisition security review system, including relevant departments and review procedures , Review standards, and analyze the construction of China's foreign investment mergers and acquisitions national security review system, pointing out the status quo of China's legislation, and put forward legislative recommendations. In this article, the authors believe that “China's national security review mechanism can be used not only for foreign capital mergers and acquisitions, but also for new projects; not only for national defense security review, but also for national economic and industrial security review.”

……

3.1.1.3 After the promulgation of the 2011 Notice on the Establishment of a Security Review System for Foreign Investors' Mergers and Acquisitions of Domestic Enterprises (Guobanfa [2011] No.6) to the publication of the 2015 Foreign Investment Law (Draft for Consultation Draft)

China has initially established a national security review system for foreign capital mergers and acquisitions, and a large number of scholars have begun to study this, but they all stay at the system level and are not deep enough. In addition, the introduction of the foreign investment security review system is still dominated by the United States, supplemented by the national security review systems of developed countries such as the European Union and Australia. On September 23, 2013, the Shanghai Free Trade Pilot Zone approved by the State Council was formally established, and a pre-investment national treatment plus negative list management model was explored in the Shanghai Pilot Free Trade Zone. At this time, some scholars reviewed the national security Combined with the negative list model, it will be included in the scope of foreign investment management for research.

 Zhang Qinglin and Liu Yan pointed out in the article New Developments in the National Security Review System for Foreign Capital Mergers and Acquisitions in Australia that the core of Australian foreign investment is “whether it contradicts national interests”. The author also pointed out that “Australia's clear ‘connotation of national interest’ includes the impact of investment on the entire economy. From the perspective of the overall economic operation: (1) the economic impact of the reorganization of the enterprise after the acquisition; (2) the nature of the source of the acquisition funds , The degree of participation of local businesses after mergers and acquisitions; (3) the benefits of employees, creditors and other related parties in terms of social well-being. (4) The degree to which investors develop projects to ensure that the Australian people obtain a fair return can it enable Australia in this field Continue to maintain a reliable supplier country. ”

……

3.1.1.4 After the publication of the Foreign Investment Law (Draft Consultation Draft) in 2015

The research results have the following three characteristics: one is the emergence of research conducted from the perspective of the overall national security concept; the second is to conduct research on the national security review legal system in the chain of foreign investment management, focusing on the coordination and fit of the system Third, the research on the national security review of foreign mergers and acquisitions is more detailed, such as the study of review standards, accountability, and the protection of investor rights.

Jiang Shan pointed out in the article On the Legal Construction of China ’s Foreign-invested National Security Review System that “On the basis of the division of ideas, to accurately locate the national security review system, first of all, national security should be reduced to a legal term, as ‘National security’ should be built on the basis of the four elements of ‘residents, territories, sovereignty, and government’, and the focus should be on systematic national defense security and narrow national economic security, thus forming an integrated two wings of ‘national security’.” Regarding foreign mergers and acquisitions, he think that “In the review of foreign mergers and acquisitions security, the generalization of national security should be converged through relevant legal terms, focusing on national defense security and radiation public security. If you try to add any content other than military security to In the concept of national security, it must be proved that it has a direct relationship with the country ’s survival interests. ”Therefore, the author believes that national economic security in the narrow sense should be resolved through the normal industry of the access link or the centralized review of operators, rather than Passed the national security review system.

……

3.1.2 Research status on the relationship between foreign capital mergers and acquisitions and national economic security

Domestic research on foreign capital mergers and acquisitions and national economic security issues, the current literature mainly focuses on the following three aspects: one is the basic concept of “national economic security”; the second is the impact of economic globalization and foreign capital mergers and acquisitions on China's economic security; and construction of the national security review system for mergers and acquisitions.

3.1.2.1 Basic concept of “national economic security”

There are different views on the concept of “national economic security”. The main points are: national economic security is a country's stronger economic competitiveness than other countries; national economic security refers to a state in which the economic development and economic interests of a globalized country are not affected by internal Or external factors and threats.

Jiang Yanfu pointed out in the Report on China's National Economic Security Situation that “National economic security mainly refers to a country's economy as a whole with a solid foundation, healthy operation, steady growth, and sustainable development. It has a certain degree of autonomy and self-defense in international economic activities. Sex and competitiveness, so that the entire economic system will not be subject to excessive blows or excessive national economic benefits due to the evolution of certain problems, and it can avoid or resolve possible local or global economic crises. National economic security includes that the country ’s economic system is not invaded by foreign forces, that the country ’s economic environment will not be destroyed, and that a government ’s ownership, use, and disposal of all its wealth will not be disturbed by foreign forces. ”

……

 

3.1.2.2 The impact of economic globalization and foreign mergers and acquisitions on China's economic security

The views on the impact of economic globalization and foreign mergers and acquisitions on China's economic security are relatively consistent. It is generally believed that the negative impact of foreign mergers and acquisitions on China's national economic security is to cause industry monopoly, weaken the technological level of Chinese enterprises, annex Chinese national brands, and affect economic order.

Fan Ying pointed out in the article Economic Globalization and National Economic Security that economic globalization has increased the difficulty of countries, especially developing countries, in the world economic competition. One of the manifestations is the large-scale invasion of multinational companies, which has caused the national economy of the host country to shrink .

……

3.1.2.3 Construction of national security review system for foreign capital mergers and acquisitions

There are many studies on the national security review system for foreign capital mergers and acquisitions. The “Research Status of National Security Review System for Foreign Capital Mergers and Acquisitions” has been elaborated. The study is accompanied by national economic security.

Xu Weiyu analyzed the relevant legal systems of China's national security and economic security review in the article Legal Issues of National Economic Security Review in China's Foreign Capital Mergers and Acquisitions and pointed out the problems in the relevant legal systems, focusing on the The problems in the provisions of the national economic security policy in the Regulations on Mergers and Acquisitions of Domestic Enterprises, finally put forward suggestions for improving the national economic security review legal system in foreign capital mergers and acquisitions in China.

……

3.2 Status of foreign research

3.2.1 The research status of the national security review system for foreign mergers and acquisitions

Foreign studies on the legal system for national security review of foreign investment have started earlier and more fully than domestic ones. Foreign research on foreign investment national security review legal systems mainly involves foreign investment national security review procedures, the relationship between foreign investment national security review agencies and the legislature, comments and reflections on specific national security review practice cases where foreign investment participants are concentrated The history and development trend of the national security review of foreign investment, and most of the research focus on the United States.

At first, scholars studied the relationship between antitrust and national security. Bruce A. Khula pointed out in the article Antitrust at the Water's Edge: National Security and Antitrust Enforcement that national security plays a major role in antitrust enforcement. National security is the core of this national policy debate, and national security issues enforce antitrust laws. Has a strong impact. With the promulgation of the US Foreign Investment and National Security Act in 2007, the research on national security review has gradually expanded, and scholars have begun to pay attention to the politicization issues facing national security review. Yiheng Feng in the article We Wouldn't Transfer Title to the Devil: Consequences of the Congressional Politicization of Foreign Direct Investment on National Security Grounds uses the “Unico Case” and “Dubai Port Case” as examples to analyze the political and third-party How abuse can affect national security reviews.

……

3.2.2 Research status of the relationship between foreign investment M & A and national economic security

Since the 1990s, under the trend of accelerated economic globalization and increasingly fierce international competition, some scholars have begun to pay attention to and engage in research on national economic security issues. Especially after frequent economic crises and security threats, the academic circles of various countries have further strengthened the research and exploration of economic security. Political economist Robert Gilpin defined economic security as “economic competitiveness and its corresponding international political status and capabilities.” In the article of National Economic Security, Lubbe and Andrzej pointed out that economic security is an important component of national interests, just like political security and military security. Its definition is vague and uncertain, and is determined by the assessment of the international situation by individuals, governments, and parties.

While discussing the overseas investment behavior of multinational companies, western scholars also involved the impact of multinational company investment on the economic security of developing countries. From the relevant research literature, it mainly focuses on the impact on the national economic sovereignty, government activities, and the form and degree of national economic integration. Representative research results mainly include: The Multinational Corporation: A Radical Approach by Hymer S.H., and Sovereignty at Bay by R. Vernon .

……

3.3 Summary

According to the author's review and summary of the relevant literature, the research results of the “National Security Review System” are rich, but there are still deficiencies. First, most of the research has focused on the national security review system in the developed countries such as the United States and Australia, the national security review system in China, and the national security review of foreign mergers and acquisitions. less. Secondly, there is no unified standard for what is national economic security at home and abroad, so it needs to be further clarified. Thirdly, there is little research on the relationship between national security review and antitrust review, and with the promulgation of the Foreign Investment Law, the relationship between Articles 33 and 35 also needs to be further determined. Fourth, for the post-event supervision of enterprises that have passed the national security review, there are few research results, and they are only up to date.

In the context of China's wider opening up, foreign capital mergers and acquisitions are bound to increase. In order to balance the relationship between the introduction of foreign capital and national economic security, it is inevitable to make good use of the “safety valve” of national economic security review. Therefore, in this paper, based on the above research results, combined with new situations and new problems, with the focus of the national economic security review of foreign capital mergers and acquisitions as the research focus, try to put forward new suggestions to better play the role of the national security review system.

 

References:

1. Chinese works

[1]漆彤：《跨国并购的法律规制》，武汉，武汉大学出版社2006年版。

……

[6]余劲松：《国际投资法》(第五版)，北京，法律出版社2018年版。

2. Chinese papers

[7]黄进、张爱明：《在美国的收买投资与国家安全审查》，武汉，《法学评论》1991 年第5期，第46页-第50页。

……

[43]董静然：《美国外资并购安全审查制度的新发展及其启示——以<外国投资风险审查现代化法案>为中心》，广东，《国际经贸探索》2019年第31期，第99页-第112页

3. English works

[44]Lubbe & Andrzej, National Economic Security, Polish Quarterly of International Affairs, Vol.6, No.4, 1997, p.59-76.

……

[51]Jonathan Wakely & Andrew Indorf, Managing National Security Risk in an Open Economy: Reforming the Committee in Foreign Investment in the United States, Harvard National Security Journal, Vol. 9, No. 2, 2018, p.1- 50.

4.Research content, expected targets and key issues

4.1 Research content

This article is mainly divided into three parts: introduction, text and conclusion, which are divided into six chapters, the main content is concentrated in chapters 2 to 5.

Chapter 2 focuses on the overview of foreign capital mergers and acquisitions and national economic security. Based on the views of relevant scholars, the relevant concepts in this article are defined,……

Chapter 3 introduces in detail the Regulations on Mergers and Acquisitions of Foreign Investors issued by the Ministry of Commerce and six ministries and commissions in 2006……

Chapter 4 is perfected from the entity aspect of the national economic security review of foreign capital mergers and acquisitions in China,……

Chapter 5 is perfected in terms of the procedures for the national economic security review of foreign capital mergers and acquisitions in China……

4.2 Expected targets

The expected goal of this paper is to solve the current problems of the national economic security review of foreign mergers and acquisitions through the study of the national economic security review of foreign mergers and acquisitions, from the perspective of entity and procedure……

4.3 Key issues

4.3.1 The concept of national economic security is vague. How to define economic security during the national economic security review? Is there a certain scope and standard?

4.3.2 There is a certain connection between the national economic security review and the antitrust review, how to coordinate the relationship between the two.

4.3.3 The lack of ex post supervision after the national economic security review ……

5.Research methods, thesis ideas, data and feasibility analysis

5.1 Research methods

5.1.1 Historical analysis method

Combing the thought development of national economic security and the development of foreign capital merger and acquisition in China, so as to reveal the evolution of the system under a specific historical and cultural background and highlight the practical significance of the national economic security review.

5.1.2 Literature research method

Through the collection, collation, reading and refining of the existing Chinese and foreign literature, so as to understand more comprehensively and correctly the basic theory of mastering the key contents of foreign capital mergers and acquisitions, national economic security and so on.

5.1.3 Legal interpretation method

“If there are legal provisions, there are legal interpretations”. The method of legal hermeneutics is also a common method of legal research.

law……

5.1.4 Case analysis method

Through analysis and interpretation of typical cases of foreign capital mergers and acquisitions, it is concluded that there are inadequacies in the legislation and practice of national economic security review of foreign capital mergers and acquisitions.

5.1.5 Comparative research method

This article compares and analyzes the national security review system and antitrust review rules of developed countries such as the United States and Canada ……

5.2 Thesis ideas

This article follows the idea of “proposing a problem-analyzing a problem-solving a problem”. First, by discussing the definition of ‘foreign-funded M & A’ and its current situation and development trend in China, the concept, characteristics and influencing factors of national economic security, the impact of foreign-funded M & A on national economic security, it is proposed that the review of foreign-funded national economic security is necessary, However, its defects will damage our economic security. Analysis of the existing problems include the incompleteness of laws and regulations, the ambiguity of the concept of national economic security, the overlap with anti-monopoly review, and insufficient post-regulation supervision. Finally, the entity proposed to establish a comprehensive national security review legal system for foreign capital mergers and acquisitions, clarify the scope and standards of national security and economic security review, clarify economic security standards and antitrust review and other countermeasures, and propose national economic security review and antitrust in terms of procedures Countermeasures such as the review coordination mechanism, the post-event supervision mechanism for the national economic security review of foreign capital mergers and acquisitions, and the supporting system for the national economic security review of foreign capital mergers and acquisitions.

5.3 Data

The data of this paper include: laws and regulations from Peking University magic weapon; Chinese documents from China HowNet; data from the website of the Ministry of Commerce; foreign laws and related English literature from Westlaw Next legal online service platform, HeinOnline legal full-text database and other platforms.

5.4 Feasibility analysis

Firstly, based on all the current materials, through literature research, legal interpretation, case analysis, comparative analysis and other research methods, and on the basis previous studies, we can propose new suggestions for new problems and new situations;Secondly, the technical route is comprehensive, the data source is extensive and authoritative. Under the tutor's patient guidance, and the author's legal knowledge reserve for many years and the careful logical thinking, this paper will certainly obtain the very good research results.

6.Research characteristics and innovations

This article analyzes the national economic security review of the national security review system of foreign capital mergers and acquisitions by clarifying the relationship between national economic security and national security, and mainly studies the current status and problems of China's economic security review ……

7.Research plan and expected research results

7.1 Research plan

Before March 2019, collect relevant laws and regulations, a large number of relevant documents through platforms such as China HowNet, Westlaw Next legal online service platform, HeinOnline legal full-text database, and Peking University legal treasure legal database, and actively communicate with the tutor to determine the general topic selection direction;

From March 1, 2019 to April 30, 2019, identify and organize documents, classify the documents, communicate with the tutor many times, determine the final topic, draft the thesis outline, complete the first draft of the opening report, submit to the tutor for review, and carry out more The final revision report was completed.

From May 1, 2019 to July 31, 2019, continue to collect new or missing materials, classify and sort them, and conceive the first draft of the thesis.

……

From January 1, 2020 to March 31, 2020, pay attention to the format and typos of the paper, check carefully to avoid problems, and submit the paper as required.

From April 2020 to May 2020, participate in the defense of the college on time.

7.2 Expected research results

Through the use of historical analysis methods, literature research methods, legal hermeneutics methods, case analysis methods, and comparative research methods, the in-depth study of the focus of the paper, “China's Foreign Capital M & A National Economic Security Review”, is conducted in terms of entities and procedures. The national economic security review of M & A is improved ……

8. Relevant research work that has participated in and the progress made

8.1 Relevant research work that has participated

Starting in March 2019, the author collected and identified relevant laws, regulations and documents through Peking University Magic weapon, China HowNet, Westlaw Next database and other platforms, and then divided the documents into five categories according to the content, namely the “National Security Review System”, “National Security” category, “National Economic Security” category, “Ex-post Supervision” category, “Coordination of National Security Review and Antitrust Review”, and then determine the direction of the topic……

8.2 Research progress made

Through reading and thinking about the literature, the relationship between the national security review and the national economic security review is clarified, and the main research object of this article is determined, that is, the national economic security review of foreign mergers and acquisitions.…… Combined with typical cases, we discovered the problems in the national economic security review of foreign capital mergers and acquisitions in China. By comparing the anti-monopoly review process and the national security review process, the two methods of coordination are basically determined. Combined with China's actual situation and drawing on foreign practical experience, the main content of the ex-post supervision mechanism has been basically determined.