论关联交易的法律规制
发布时间：2019-06-18 19:50
【摘要】： 关联交易是在市场经济发展过程中自然产生的,其存在对于节省交易成本,提高公司的经营效益和市场竞争力,实现企业的整体战略都有莫大的好处。但是在肯定关联交易的同时,还应该看到不正当的关联交易对市场经济的巨大杀伤力。这些关联交易正在侵蚀着被传统经济学者奉为至上的市场的“纯洁性”;破坏着市场公平、竞争、诚信的基本理念;挫伤了广大投资者的信心。因此,面对关联交易的这把双刃剑,在肯定公允的关联交易最大程度的发挥其优势的同时,如何防止不正当的关联交易并对其进行规制,成为法学界一个急迫却又复杂的难题。 本文以规制关联交易特别是非公允的关联交易为线索,从相关法律入手,以保护公司、非关联股东和债权人利益为出发点,借鉴国外规制不公平关联交易的立法经验及相关制度设计,提出了我国对于关联交易进行法律规制的立法建议。 根据这样的思路,本文分为六个部分: 第一章是从界定关联交易的概念入手,具体分析了关联关系和关联方、交易的定义,最终得出关联交易的定义;其次针对现阶段关联交易出现的新问题——关联交易的隐形化进行了说明;最后分析了关联交易的特征及分类。 第二章对关联交易进行规制的必要性分析。具体从其巨大的社会经济危害、对现行法律的巨大挑战、法律使命和法律发展的内在逻辑三个层次来论述对关联交易进行法律规制的必要性。 第三章总结对关联交易有效性的判断标准。从程序和实体两个方面进行总结:在程序上,必须要经过法定程序的信息披露,经过非关联方或者非利害关系人所在机构或者大会的批准;实体上,该项交易必须是实质公平。 第四章简单介绍了在我国现行法律框架下,新公司法、证券法以及新会计准则对关联交易的规制,以及其中存在的不足。同时,对如何对关联交易进行直接、系统的规制提出一些设想,包括立法模式、法律定位和规制框架。 第五章从公司法的视角阐释对关联交易的规制的进一步完善。主张加强独立董事在关联交易中的监督作用;在公司利益受到损害时公司可以主张归入权;建议在我国公司法上引进深石原则进一步加强对债权人的保护;同时完善现有制度并加强各制度之间的协调性。 最后部分是对本文的一个总结。
[Abstract]:Related transactions occur naturally in the process of the development of market economy, and their existence is of great benefit to saving transaction costs, improving the operating efficiency and market competitiveness of the company, and realizing the overall strategy of the enterprise. However, while confirming the affiliated transaction, we should also see the great lethality of improper related transaction to the market economy. These related transactions are eroding the "purity" of the market regarded as the supremacy by traditional economists; destroying the basic concepts of market fairness, competition and integrity; and undermining the confidence of the majority of investors. Therefore, in the face of this double-edged sword of affiliated transaction, while confirming the fair related transaction to give full play to its advantages, how to prevent improper related transaction and regulate it has become an urgent but complex problem in the field of law. Based on the clue of regulating related transactions, especially unfair related transactions, starting from the relevant laws, taking the protection of the interests of companies, non-affiliated shareholders and creditors as the starting point, and drawing lessons from the legislative experience and related system design of foreign countries to regulate unfair related transactions, this paper puts forward some legislative suggestions for the legal regulation of related transactions in our country. According to this train of thought, this paper is divided into six parts: the first chapter starts with defining the concept of affiliated transaction, analyzes the definition of related relationship and related party, transaction, and finally obtains the definition of related transaction; secondly, it explains the new problem of affiliated transaction at this stage, that is, the concealment of affiliated transaction; finally, it analyzes the characteristics and classification of affiliated transaction. The second chapter analyzes the necessity of regulating affiliated transactions. This paper discusses the necessity of legal regulation of related transactions from three levels: its great social and economic harm, the great challenge to the current law, the legal mission and the internal logic of the legal development. The third chapter summarizes the criteria for judging the effectiveness of affiliated transactions. This paper summarizes from two aspects: in the procedure, it must go through the information disclosure of the legal procedure and the approval of the institution or the general meeting of the non-related party or the non-interested party; in the entity, the transaction must be substantive fairness. The fourth chapter briefly introduces the regulation of related transactions in the new company law, securities law and new accounting standards under the current legal framework of our country, as well as the shortcomings. At the same time, this paper puts forward some ideas on how to regulate related transactions directly and systematically, including legislative mode, legal positioning and regulatory framework. The fifth chapter explains the further improvement of the regulation of related transactions from the perspective of company law. It advocates strengthening the supervisory role of independent directors in affiliated transactions; when the interests of the company are damaged, the company can advocate the right of subrogation; it is suggested that the principle of deep stone should be introduced into the company law of our country to further strengthen the protection of creditors; at the same time, the existing system should be improved and the coordination among the systems should be strengthened. The last part is a summary of this paper.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.291.91
本文编号：2501743
[Abstract]:Related transactions occur naturally in the process of the development of market economy, and their existence is of great benefit to saving transaction costs, improving the operating efficiency and market competitiveness of the company, and realizing the overall strategy of the enterprise. However, while confirming the affiliated transaction, we should also see the great lethality of improper related transaction to the market economy. These related transactions are eroding the "purity" of the market regarded as the supremacy by traditional economists; destroying the basic concepts of market fairness, competition and integrity; and undermining the confidence of the majority of investors. Therefore, in the face of this double-edged sword of affiliated transaction, while confirming the fair related transaction to give full play to its advantages, how to prevent improper related transaction and regulate it has become an urgent but complex problem in the field of law. Based on the clue of regulating related transactions, especially unfair related transactions, starting from the relevant laws, taking the protection of the interests of companies, non-affiliated shareholders and creditors as the starting point, and drawing lessons from the legislative experience and related system design of foreign countries to regulate unfair related transactions, this paper puts forward some legislative suggestions for the legal regulation of related transactions in our country. According to this train of thought, this paper is divided into six parts: the first chapter starts with defining the concept of affiliated transaction, analyzes the definition of related relationship and related party, transaction, and finally obtains the definition of related transaction; secondly, it explains the new problem of affiliated transaction at this stage, that is, the concealment of affiliated transaction; finally, it analyzes the characteristics and classification of affiliated transaction. The second chapter analyzes the necessity of regulating affiliated transactions. This paper discusses the necessity of legal regulation of related transactions from three levels: its great social and economic harm, the great challenge to the current law, the legal mission and the internal logic of the legal development. The third chapter summarizes the criteria for judging the effectiveness of affiliated transactions. This paper summarizes from two aspects: in the procedure, it must go through the information disclosure of the legal procedure and the approval of the institution or the general meeting of the non-related party or the non-interested party; in the entity, the transaction must be substantive fairness. The fourth chapter briefly introduces the regulation of related transactions in the new company law, securities law and new accounting standards under the current legal framework of our country, as well as the shortcomings. At the same time, this paper puts forward some ideas on how to regulate related transactions directly and systematically, including legislative mode, legal positioning and regulatory framework. The fifth chapter explains the further improvement of the regulation of related transactions from the perspective of company law. It advocates strengthening the supervisory role of independent directors in affiliated transactions; when the interests of the company are damaged, the company can advocate the right of subrogation; it is suggested that the principle of deep stone should be introduced into the company law of our country to further strengthen the protection of creditors; at the same time, the existing system should be improved and the coordination among the systems should be strengthened. The last part is a summary of this paper.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.291.91
【引证文献】
相关期刊论文 前1条
1 陈亦聪;武俊桥;;上市公司非公允关联交易的法律规制——以刑事责任为中心[J];证券市场导报;2011年08期
相关硕士学位论文 前1条
1 何单;小额贷款公司关联关系探析[D];华东政法大学;2010年
，本文编号：2501743
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