In Terms Of The Protection Of Creditor's Benefit In Connected Transaction Of Controlling Shareholers

Modern enterprises take the joint-stock company as its main manifestation. Modern enterprise is one kind of capital enterprise, the autonomous enterprise and the democratic enterprise. It take the capital as the link, widely adopts the cartel form, gradually from the sole corporate growth to the multitudinous related company, and play an important role in the various countries' economic domains. The Connected transaction, as a derivative of this economic background, is used more and more widely. But in our country, the production of Connected transaction is not only influenced by economic environment, but also influenced by the system aspect. It can be said that, the Connected transaction is the centralized product of world economic development and the enterprise development. In the various countries' market operation process, all of the Connected transaction is the objective existence. The company law still had many problems to the protection of creditor's benefit. Doctrine of the company is not merely the economic efficiency. Company's goal is not pure to realize the company shareholder's benefit maximization. One of the functions of company is diligently to keep benefit balance of many kind of much kind of bodies. Take the balancing control shareholder and creditor's benefit as the example, shareholder's investment constitutes company initial property origin, but the company property also constitutes the total guarantee of company creditor's rights. When the control shareholder to use the related party transaction, deliberately flees by property shift , the total guarantee of creditor's rights are weakens. This kind of status of company creditor enables him faced with the question to control the company behavior, to prevent the company breaks the contract , even goes bankrupt. Therefore, not only provide the protection to the common creditor of the company in the law, keep them rises from creditor's status in the traditional civil law to main body status in the company law. Moreover, must to provide protection to common creditor and consider the creditor in Connected transaction. Because the control shareholder can use more covert and more complex method.Therefore, this article embark to control the shareholder to be connected in the transaction and the idea suitable for protection, attempts to have the offer in the below aspect: First, although the related party transaction research as well company little shareholders and the creditor protect research are many, but the system research specially aims at controls the shareholder to be connected is also less. Second is the typical system design. This article from the microscopic angle, stress judicial operation and application and carries on system discussion. The full text divides four major parts.First part: Outline the protection of the creditor's benefit in the connect transaction. This part include four aspects : first, elaborated the basic question of connected transaction, summarized the basic of meaning of connection transaction and controlling shareholder. Next, analysis the definition of creditor in connected transaction, make the relations of different creditors clear.In afterwards the analysis of creditor's inferior position and the analysis of the reason that creditor is at the inferior position, then draws out the necessity and the significance of protecting the benefit of creditor .Second part: Comparison analysis of the protection of creditor's benefit in Connected transaction. It is necessary to protect creditor's benefit. But what kind of principle should with to protect? What is the range? It is the main question of this part. Analyze the protection of creditor's benefit overseas, then study and use advanced system for reference. First, this part analyzed the way of regulations beforehand in Germany. Next, this part analyzed the afterwards way of relief in American. Again it analyzed the example of Taiwan for reference. Studied their compromise way. Finally to analyze the three systems comparatively and sought suitable system in our country.Third part:the present legislation of protection of creditor's benefit in Connected transaction. First briefly analyzes the existing legislation in protecting the creditor's benefit. Then analyzes new revision in the company law that it increases the damage compensate responsibility and the legal personality denial system in Connected transaction, and elaborates the author's analysis to this question .Fourth part: perfect the protection of creditor's benefit in related party transaction. This is this article key point and the goal. Although the law of our country about the protection of creditor's benefit has made certain stipulations regarding the time of the execution of the law is shorter, the related legal article is dispersible, the people didn't form the system understanding in the theory and the practice. In view of this, this article attempts to analyze our country's situation of related party transaction and to compare other national interrelated legislations, on the basis of which, our country's law of Connected transaction will be tidied up to be systematization. This article proposed the concrete conception from two aspects. Control beforehand and redress afterwards. First, explicitly stipulate control shareholder's information obligation and creditor's objection right. Second, prescribe transparence and publicity of information. Third, study American back creditor's rights system. Stipulate that Control Company should be inferior to the other creditor's rights of the subordinated company. It has damage compensate limit in the duty which the control company should bear for the subordinated company. Similar to goal system of company law personality , The goal that control the shareholder back creditor's rights of being paid off is preventing being unfair in essence and avoiding controling shareholder's making the creditor's rights in the Connected transaction. Then it uses this creditor's rights to participate assignment of subordinate company's bankrupt financial group, thus it harms other creditors' benefits. Fourth, study essential combination rule. It would be advocated that bankrupt company's property and the debt of each members will be combined in the specific situation. According to proportion of creditor's rights, the combined debts will be proportional distribute to all creditors, but do not investigate carefully company which some creditor's rights will be belong to. Fifth, raising the creditor's own protection consciousness and establishing the good social credit system. While the law pays the protection diligently to the creditor, the creditor cannot accept passively. They should gradually enhance their own consciousness of right protection in practice. Inevitably paying attention to creditor will impel the establishment of good social credit in the related party transaction. Moreover, establishment of the good social credit otherwise also will promote the company to consummate protection system of creditor in the Connected transaction.The questions connected the Connected transaction involve many domains. The related party transaction not only must completely be controlled by the effective legal rules and regulations, but also needs other legal laws and regulations together to be coordination and the adjustment. Moreover, it should unceasingly go forward and unceasingly consummate with development of times.