| The article mainly deals with how to regulate the affiliated transaction of the listed-company in china. Affiliated transaction refers to an item-arranged activity that involves transferring assets or obligation between connected dealers, for example the transaction between the listed company and its holding company, the manage levels.Affiliated transaction is a common phenomenon in the world, during the process of company' s growth, which is without any exception in China. By its nature, it is neither a pure market economic behavior, nor an inside transaction, but with characteristics of the both. On the one hand, affiliated transaction helps to decrease transaction cost, to gain better transaction conditions; on the other hand, it has the risk of spoiling the benefits of minority shareholders and creditors of the listed-company. So most countries in the world have taken very strict measures to regulate it. Regulations of affiliated transaction in foreign countries include three parts. The first part is a restriction on the behavior of insiders in the company; the second is to protect the minority shareholders; the last part emphasizes on the protection for the benefits of creditors of the listed company. The Securities and Exchange Commission of USA voted to publish for comment a rule proposal that also took action to adopt provisions to exempt transactions between investment companies and affiliated persons in August 2002.The listed companies in china mostly derive from the state-owned enterprises, so they always keep close connection with each other in many aspects, for example capital, staff, business and finance. Affiliated transaction is the most important way they use. Although affiliated transaction has positive effects in some degree, it has more negative effects. So most countries have taken strict measures to regulate it. It is only 13 years that security market in china developed from the establishing of Shanghai Security Exchange in December 1990. It is not a matured security market. The supervisor-China Securities Regulatory Commission lacks of effective regulatory experiences, and the self-discipline of the listed company has not fully come into being to the day. The affiliated transaction' s negative sides are more manifest than the positive. The interests of the minority shareholders and creditors of the listed company are damaged greatly. At the same time, there are many law leaks in the related laws in china, which include the Company Law and the Security Law, relating to the affiliated transaction of listed company. With the development of Chinese socialism market economy, the listed company in china will be more and more large in scale. And there will be more and more Trust, Cartel, Syndicate, Konzern and Group Enterprises. Affiliated transaction will become more and more common inChina. So it is a critical issue to how to modify the related law in order to regulate the affiliated transaction. The article is written for this. In my opinion, affiliated transaction of the listed company firstly is lawful business way, and the law need not forbid it. For affiliated transaction is not always harmful for the benefits of the related. On the contrary, it may be better way. The key of the issue is how to regulate it, not forbid it. Regulations of affiliated transaction involve many laws, for example tax law, anti-monopolies law, company law, security law, contract law and etc, especially company law and security law. The article analyzes the issue from the following aspects. The first is the scope of the affiliated persons. There is no the scope of the affiliated persons in company law and security law. However, the listed rule of Shenzhen and Shanghai Security Exchange concerned. The scope is very narrow and need to be broadened by reference to foreign legislation. The second is the fiduciary duty of holding-shareholders. From our viewpoint, the business judgment rule is the very fit standard to judge the duty of fiduciary of holding-shareholders. In the third aspect, we think ou... |
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