On Legal Regulation Of Related Party Transactions

Modern economy system prompts companies to participate in the economic affairs of the commonwealth or other legal organizations, which produced a "affiliated transactions" new normative field to deal with this form of enterprise transformation. By regulations under the law in specific areas, and the diferent technical methods and focus, a series of affiliated transactions involving differences are closely connected to the concept of groups, including: the related persons, affiliated enterprises, enterprise groups, parent and subsidiary companies, the directors of conflict of interest transactions. In the main road into the regulatory system,"related person"and"affiliated enterprises"are two main models, which the former no more than meet the needs of regulation, and the latter more suited as a tool for private law's use.By any regulation of the concept as the starting point, associations are affiliated transactions normative basis, which in real life can be for the performance of various types. Economy and law are two factors attributed to the formation of associasions, which experience the stage from junior to senior and from temporary stability to the evolution , and ultimately become the structure of molding. Precisely because of the existence of associations, although corporate personality for law nominally stand down, it would lose its independence with the economic level in fact. Traditional corporate power structure was thoroughly smashed, threatening the interests of a single company as well as other subjects with its stakes. At the same time, due to the mutual penetration between public law and private law, and the emergence of social law, affiliated transactions'impacts of existing legal tradition is reflected not only in the area of company law, but other departments of law including commercial law, securities law, anti-monopoly law, tax law, financial law , labor law , and so on .In accordance with their respective national conditions and the different legal traditions, different countrys adopt different regulatory system models of affiliated transactions. In the areas of company law, United States primaryly use spread regulation methods and case law. Whearas, Germany mainly use concentrating regulation system and statute law. Taiwan have main reference to Germany law in style, and also absorb the experience of the case law. China's existing company law does not have a unified focus on norms, but there are some provisions in principle, which is less than comprehensive and reasonable. In the securities law area and other legal departments, there are also similar problems. Because of the differences of the judicial system and the institutional environment, the United States affiliated transactions legislation and regulation mode are not suited to China to follow completely. Germany legislation has its own advantages but deficiencies, as Taiwan has a defect of narrow scope of the regulation system.From the co-ordination point of view between scientific nature and feasibility, Chinese mainland should learn from Taiwan experience of the regulatory system. As for the macro-regulation mode selection, China should adopt decentralizing regulatory system, building their own relatively independent regulation system according to the characteristics of different legal departments. Among those, regulations of company law should be considered as a core reference to others. In this micro-level choice, "associated enterprises" is a major adjustment mode. Company law should give a scientific definition of "affiliated enterprises" itself and its scope, which not only embodies openness but flexibility, and should not be over-expansion lest endanger the concept of the stability and strictness. At the same time, "association" provisions of the existing norms should be coped with to retain some of its positive elements, making up "associated enterprise" model's deficiencies.