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Company Rules And Regulations Of The Related Party Transactions Of Listed Companies In China

Posted on:2006-06-22Degree:MasterType:Thesis
Country:ChinaCandidate:H LiuFull Text:PDF
GTID:2206360155969459Subject:Civil and Commercial Law
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The related party transaction can be defined as the transaction between the related party. Accordingly . the related party transaction of listed company is the transaction between the listed company (including its subsidiary company ) and its related party Objectively, we say related party transaction has many active functions , such as it can save cost, used the resource better , improve the efficiency of finance , and cut off business risk . etc. However , for the reason of the control between the related transaction . the related transaction might be deviated into unfair related transaction easily , For example . the listed company can manage its earning ,shelter the tax by the way of related transaction .etc . Now , the related transaction in our listed company is very common . and as a result of some drawbacks of laws and other factors , our listed company "s related transaction is incline to be unfair related transaction easily .which has brought harmful infection to the interest of listed company , minor shareholders . and creditors . Undoubtedly , the research on related transaction of our listed company is very important to the establishment of law adjustment to our listed company's related transaction .The law problems derive from the related transaction are involved in different law area , such as the company law , securities law, tax law . accounting law and anti-monopoly law . But considering the key rule which the company law has been played in our economy , the article will research the company law adjustment to the related transaction of our listed company from the standpoint of civil and commercial law.The article includes four parts . here 1 will make a brief explanation for every part.The first part devote to discuss the definition of related party , it can be divided into two questions . In the first question , 1 definite the related party and explain the scope of it . I point out that the control . together control and materially influence are the standard to judge whether the relationship exist or not , and then I explain the meaning of control , together control and materially influence to make things clearly . 1 aiso definite the scope of related party . firstly , I introduce the correlative legislation of overseas , then analysis the existing legislation in our country to make a conclusion that our company law adjustment to related transaction is not uniform , it needs to be unproved as soon as possible .In the second question . I try to compare the related party with corporate group , parent and subsidiary company and international company to find their same and different points .The second part is mainly about related transaction . In the first question , I definite the related transaction firstly . take a view that the related transaction is a transaction between related party , then expatiate its characters and classification .In the next question , I analysis the motives of our listed company 's related transaction . Meanwhile . I point out there are two kinds of motives of related transaction .The active motives involve saving the cost , using the resource better , improving the efficiency of finance management and cutting off business risk . And the negative motives mainly as related party adjust profit and financial index or transport interest to pursue illegal interest by the way of related transaction .The third part is about the factual analysis to our listed company's related transaction .there are three questions . In the iirst question . I put forward my own classification of the pattern of our listed company "s related transaction , then point out the defects of unfair related transaction in these patterns at the same time . I divide the pattern of related transaction into three sorts . First . the related transaction in management , it mainly includes purchase and sale of manufactures , transportation of cost . leasehold of property , appropriation of capital and related party assure .Second , the related transaction in property reformation . such as transfer of property or stock , permutation of property . reorganization of debt , management of trusteeship , use and transfer of immateriality asset . and repurchase of stock . Third , the related transaction with the cover of unrelated party transaction , it involves creating related party and related transaction under the power of government , developing unrelated party after related transaction . dividing one sum of related transaction into two sums of unrelated transaction by the way of a "bridge "'company , and using the cover of potential relationship to aim of related transaction . Meanwhile , in this question , 1 illustrate lots of examples to analysis the defects of related transaction pf our listed company , point out that there are too much unfair related transaction in our listed company .Then . in the second question . 1 examine the causes of formation of the related transaction of our listed company . draw a conclusion that the emergence and blossom of related transaction in our country are the results of our country 's politics , economy and so on , especially the factor of uncompleted reform of our listed reform . The third question is mainly about the infection of the related party transaction bring io bodies . which including the listed company , the minor shareholders and the creditors . to illustrate the really necessity of establishment our company law adjustment to related transaction .The fourth part is about the related transaction of our listed company and the adjustment of company law . it has three questions . The first question discuss the challenge of the related transaction has been brought to traditional company law , especially principles of company legal personality and shareholders limited liability . As we all know . these two principles are the foundation of traditional company law ,. However, in the case of related transaction . for the reason of control between related party . the finance and manage policy of subsidiary company are easily under the control of major shareholders or parent company . At this time , the subsidiary company *s dependent personality should be suspected .Because of the control , the related transaction between subsidiary company and controlling shareholders would be altered to unfair related transaction easily - which might damage the interest of subsidiary , minor shareholders and creditors . So . if we consider shareholders limited liability as an absolute doctrine , the major shareholders would take advantage of it to avoid their debts .And in this question . 1 also analysis the flaws of our company law , point out that although there some laws to adjust related transaction , but the adjustment to related transaction of our company law is still in a blank . I agree with the \ iew that the establishment of company law adjustment to related transaction is the key point .So . in the second question . I research on company law protection for minor shareholders in the case of related transaction of our listed company ? Iintroduce some relevant measures in abroad .The law protection measures ahead of time include fiduciary duty of controlling shareholders , rules of approval of board and shareholders . shareholders 'right of inquiry and suggestion , and exclusion of relevant board and shareholders . The measures of law protection afterwards include the withdrawal, invalid or avoidance to acts of board and shareholders . Accordingly , out company law should absorb these measures .In the third question , I discuss the company law protection for creditors , namely principle of piercing the corporation veil and the Deep Rock doctrine , which have been used by many other countries , and ! take a view that our company should use these two principles in the future too . All of these measures will benefit to our listed company .minor shareholders and creditors . even to our market economy .
Keywords/Search Tags:listed company, related party transaction, company law adjust to related party transaction
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