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Legal regulation of related transactions of companies

2019-10-15 来源: 51Due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Legal regulation of related transactions of companies,供大家参考学习,这篇论文讨论了公司关联交易的法律规制。严格地说,公司关联交易不是一个法学概念,而是经济学、管理学经常涉及的概念,公司法出于自身研究和规范的需要引入了这一概念。关联关系是指公司控股股东、实际控制人、董事、監事、高级管理人员与其直接或间接控制的企业之间的关系,以及可能导致公司利益转移的其他关系。基于关联关系发生的交易即是关联交易。关联关系和关联交易均是中性的,公司法不持笼统禁止的态度,而是在两方面加以关注。对公司关联交易的法律规制是指对可能损害公司利益进而损害中小股东和债权人利益的关联交易进行法律上的规范和制约。

The forms of related transactions of companies are diverse. This paper divides related transactions of companies into two categories: related transactions based on company assets and related transactions based on company personality, so as to further deepen the understanding of related transactions of companies. In the face of the current situation that there are few laws and regulations governing related transactions of companies, this paper focuses on the reasons, and points out that companies are the subject of regulating related transactions, and the laws are limited to making principled provisions.

Strictly speaking, connected transaction of a company is not a legal concept, but a concept often involved in economics and management. The company law introduces this concept out of the need of its own research and standardization. In spite of this, the current "company law" to "relationship" has made the stipulation of the specification, but not to the "related party transactions" to make clear rules, namely "company law" the two hundred and sixteenth item 4 "relationship refers to the company controlling shareholders, actual controllers, directors, supervisors and senior management personnel and its direct or indirect control of the relationship between the enterprise, and may lead to the company interests transfer relationship,... ". From this, we deduce that the transaction based on association relation is related transaction. How to understand the essential attributes of association relation and related transaction? Should be opposite company connected trade all want to give legal regulation? As pointed out by some scholars, "association relationship and related transactions are neutral. The company law does not hold a general prohibition attitude, but pays attention to both aspects. Related transaction does not necessarily have legal regulation, company of related transactions that may damage the interests of the company only need to go to the regulation, and for those who accord with the interests of the company related party transactions, because of their generally follow the market rules, there is no need further attention and intervention focuses on the current "company law" norms of related transactions, pay attention to the company benefit could be shifted also proves this point. In a word, the legal regulation on related transactions of companies means the legal regulation and restriction on related transactions that may harm the interests of the company and thereby harm the interests of minority shareholders and creditors.

Effective legal regulation of related transactions of companies should not stay on the general concept of the regulated objects, but need to carry out specific understanding and analysis of related transactions. Then the manifestation of related transactions is a good entry point.

Indeed, in practice, the forms of related transactions of the company are various and inexhaustible, which is determined by the richness of the commercial activities of the company as the commercial subject. Theoretically, all transactions of the company have the possibility to become related transactions, but this does not prevent us from making classification according to certain standards. For example, according to the number of transactions, "connected transactions include one-time connected transactions and continuous connected transactions. "Continuous connected transactions are those that are expected to be continuous or frequent over a period of time and involve the provision of financial assistance, services or goods." We can roughly divide related transactions of companies into related transactions based on company assets and related transactions based on company personality. Related transactions based on corporate assets refer to those related transactions with corporate assets as the transaction object. Here, "assets" is understood in a broad sense. Property related transactions occupy the majority of related transactions of the company, among which the related transactions of the type of buying and selling are more common, such as buying or selling commodities, providing or accepting services, etc. It also includes guarantees, leases, licensing agreements, debt restructuring, and transfers of research and development projects. As a legal person, a company has a fictitious personality in law. Based on this personality, there is the possibility of related transactions in commercial activities. The typical one is commercial agency. The reason why a company can choose an agent to represent its business activities is that it has the personality attribute of independent commercial subject qualification, and what kind of agent it chooses is usually in the company's own interests. In addition, related transactions based on corporate personality may also occur in the field of gift.

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