Study On The Validation Element For Director's Self-Dealing Transaction

Under the American law,rules of validity elements for director's self-dealing transaction are mature,and the writer could illuminate from its system a lot.Therefore,the American law system is the criteria during the analysis of Chinese law.The validition element under the American law is a regulatory system.Nevertheless,the regulatory system in Chinese law hasn't been established yet and a number of problems will occur when applying present regulations.Through the above analysis,the writer believes that our country shall establish the validation regulatory system for director's self-dealing transaction under the Company Law,and of first priority shall make a good order between the several parts under the system generally.The first part of this paper mainly identifies the study subject.It is necessary first to identify the study subject under American law because the study method of this paper is a comparative study.Second,the writer differentiates the director's affiliated transaction from that made by shareholders.Last,the study subject is narrowed down to the validation elements for director's self-dealing transaction for the purpose to clarify the study area of affiliated transaction.The second part of this paper mainly introduces the validation elements of director's self-dealing transaction under American law.Due to rules on this legal problem are developed well under the American law the writer intends to make a complete introduction.Through this part,readers could find the American law on this problem is a mature regulatory system established by case law and statutes.The writer calls the American law as a system crossed horizontally and vertically.On the horizontal level,the writer narrows the American law down to three concepts:disclosure, approval and intrinsic fairness and on the vertical level are specific regulations of each element.The writer believes under the American law these three points can be regarded as general principle in judging the validation elements of director's self-dealing transaction,and thus provides the following comparative analysis a solid standard.The third part of this paper mainly analyzes the regulatory status under the law of our country.The writer believes it is far insufficient of our laws and regulations on the validation elements of director's self-dealing transaction.First,our country does not have a direct regulation on director's self-dealing.Second,there are two indirect ways to regulate director's self-dealing under Chinese law:Article 22 of the Company Law and Article 52 and 54 of the Contract Law.Comparing with the three-element test under the American law,the writer believes though article 22 has its shortages it is the regulation that most similar to the three elements and can satisfy the regulatory purpose mostly.In consideration of the knowledge for the shortages of our law,the writer proposes in the last part of this paper suggestion to perfect our law, which part is also the core of this paper.The writer believes our country shall establish the validation system of director's self-dealing transaction under the Company law and of first priority shall make a good order between the several parts under the system generally.As to the first argument:the writer thinks it is necessary to clarify this argument through this paper because first this topic is a cross-area topic which connected with both company law and securities law,second domestic scholars haven't proposed a clear point on this problem and third it is an element which should be considered first prior to perfect our law.The writer proves his argument from three aspects:the tradition of the company law,the insufficiency of contractual regulation and the requirement for the court judgment.As to the second argument:based on the three elements test under the American law,it is necessary first to arrange the regulatory system properly in a broad perspective,and the writer puts forward his suggestions on the arrangement microscopically.