Listed Company Un-fair Connection Transaction's Legal Regulation

The connection transaction is a kind of commercial trade form which appears inevitably along with commercial trade's development and the prosperity, the connection transaction is the enterprise expands and seeks a kind of special transaction form which in the cost reduction process the innovation comes out. The connection transaction has already solved company's low cost management, had avoided the scale cost question which the company integration degree was excessively high produces, has become a kind of transaction form which the nowadays To be listed adopts generally. The connection transaction is a sharp weapon which to be listed manages, but connection transaction, once will certainly to become To be listed's benefit with the opportunism behavior union "the digger ", light the phantom normal management and operation and gains ability, the heavy piece pulls out the spatial company, loses the survivability. Therefore, must the differential treatment connection transaction, encourage regarding the normal connection transaction for it, must avoid by might and main regarding the non-fair connection transaction, effective rules and regulations. This article from regulates the non-fair connection trade this main body to embark, altogether divides into five parts.First part it main elaboration connection transaction limits and analysis. The shift resources or the duty theory that summarized the connection transaction content comprehensively, both included the resources shift and to include the voluntary transfer, the connection transaction is similar to the regular way, was both sides or in every way between mutual transaction, this side was opposite in other side is inevitably a side is a benefit, another side was a duty. The connection transaction's classification had not stipulated identically, both has the law enumerates-like the stipulation, and has profits from the overseas theory the self-transaction and the basic self-transaction classification, but also has in the practice to carry on the classified way which according to the connection transaction degree the decision-making power divides. The law of contract is considers the contract from the contract final potency the validity, the law of corporation direct stipulation connection transaction potency question, the connection transaction potency has not depended upon the law of the validity, the law of corporation direct stipulation connection transaction potency question, the connection transaction potency has not depended upon the law of contract to carry on finally decides after deliberation. A contract valid or not important consideration factor is a fairness, if the contract will obviously lose fairly will cause the contract to have may the cancellation, the contract potency had the slight defect inevitably.the second part main elaboration opportunism behavior non-fair connection transaction reason and harm. To be listed insider's opportunism behavior is refers to be listed's control shareholders, the major stockholder, the trustee, the higher managements, uses it institutional which exists to be listed's influence or the control and in the company management and operation process "the slit", affects the company benefit to seek own benefit the behavior. The opportunism behavior seeks the connection transaction to carry on the benefit transportation inevitably for it. The non-fair connection transaction's goal nothing else but two categories, one kind is individual goal, one kind is the organization goal or is called the company goal. According to the different goal, the non-fair connection transaction has the different motive, forms under the respective motive promotion and the stimulation. Regardless of which one type's company possibly does have the non-fair connection transaction. The holding shareholder company controls stock the shareholder to have the conflicts of interest with other shareholders, the operator control company has between the operator and owner's conflicts of interest. The non-fair connection trade fair has the adverse effect to the nearly all company participants and the environment, mainly includes to be listed itself, the company shareholders, the company creditors, even the stock market has the adverse effect.The third part mainly elaborated to be listed non-fair connection transaction procedural rules and regulations measure. Since the point of order has been each kind of legal regime essential essential factor, the form rational idea already strikes root in the hearts of the people, a set of complete institutional framework has the rational procedure surely, the form rationality lets the public have the reason to believe draws the conclusion according to the fair rule and the way is fair, has the persuasive power. The procedure is in advance controls connection transaction fair and just the first strainer, is following in the connection transaction fair and just question from the disclosure to the related main body authorized system. And procedura mainly includes four major parts, what most important is connected the transaction the disclosure system, will be connected the transaction to reveal to the public, lets the entire society supervise is connected the transaction advance. After disclosure also needs to be listed related main body the authorized system, the practice was defers to the connection transaction degree to carry on the different authority division differently, had the general meeting of shareholders and the board of directors separately authorizes.In authorized process, since is connected the transaction to involve on the necessity to is connected the shareholder and the trustee, is connected the shareholder and the trustee applies the challenge system in the vote process. Also finally, after the complete company interior public figure examined has set up the company exterior public figure independent director's review mechanism, certain extent's connection transaction needed to carry on the independent examination authorization by the independent director.The fourth part mainly elaborated to be listed non-fair connection transaction reality rules and regulations measure. The legal pursue is not pauses merely in formally, but is the hope serves the entity fair purpose through the form rationality, the procedure is only to the entity path, has the correct path certainly to present the anticipated result not necessarily, therefore has the necessity under the procedure advance premise to dispute that the connection transaction carries on the reality proof, inspects its fairness. To be listed non-fair connection transaction's reality rules and regulations, mainly through regulate the non-fair connection transaction by the related connection main body burden certain duty's way from the entity, mainly includes several kind of key connection main bodies, to be listed shareholder loyal duty, to be listed substantial control person good faith duty, to be listed trustee faithful duty.The fifth part mainly elaborated to be listed non-fair connection transaction relief measures. The relief is the end point which all laws move toward, does not have the relief law is only the form attractive manifest, sings the resounding slogan, the class was stipulating in the invalid procedural nature, is unable to realize the assurance of human rights primary purpose finally. In the commercial domain, the law should have the relief similarly or is becomes punitively, the legal risk is in itself the commercial gambling cost, the venturer needs to withstand the legal risk inevitably, must obtain the fair treatment inevitably the trespasser, creates the good business environment. And mainly includes two kind of relief measures, including the company personality denial system which provide reliefs in view of to be listed creditors, through denied that the company protection of ones personality company creditor, by the company veil investigated is connected person's responsibility. The company lawsuit system, through the procedure slight defect lawsuit and the entity content lawsuit system, guaranteed that shareholder's generation of position lawsuit, maintains to be listed and stock owner's benefit.