Legal Issues Of Directors Of Self-dealing

For the director self-dealing, from the legal value tropism, director self-dealing inherent conflict of interest is implied directors fill one’s own pocket risk. For the maintenance of social justice, to protect the interests of shareholders, which must be strictly standardized, but the law especially the commercial law must also consider other important social value, such as efficiency, predictability and commercial behavior determinism and so on. So the regulation director self-dealing purpose, is to protect the company and its shareholders, creditors and other interested parties interests, play director self-dealing raise efficiency and reduce transaction cost advantage through the director self-dealing legislation perfect, make it towards the direction of development is conducive to people, draw on the advantages and avoid disadvantages. This is the article studies this topic the main purpose.This article is divided into five parts, the first part is the director self-dealing legal principle theory of law foundation are summarized, for the do. The director self-dealing connotation and extension of a clearly defined, is on a transaction for prevention, review, adjustment, the legal responsibilities shall be investigated premise, but also to build a self trading laws and regulations system logical basis. Then the director self-dealing feature undertook elaborating, features including self trade will lead to a conflict of interest and rights transfer and director I deals with unconventional and unfair potential, for self-dealing legal understanding of characteristics, is that self whether the transaction structure, the analysis of self nature of the transactions and choose corresponding measures are important basis for. Finally the director self-dealing jurisprudential basis for discussion, can clearly recognize the director self-dealing regulation necessity.The second part of the director self-dealing range of theoretical research, in the self trading parties, and corporate transactions the parties must be either directors and of the interested parties, for the parties in the range of China’s" company law" did not clearly defined, so the presence of the law blank, is not conducive to the director self-dealing specification, therefore needs to be made clear further director self-dealing transactions subject scope, content and time of the transaction. For the director self-dealing subject range, in the self trading parties, and corporate transactions the parties must be either directors and of the interested parties, for the parties in the range of China’s" company law" did not clearly defined, so the director self-dealing stakeholders were clearly definition of. Secondly, for independent directors, board of directors, the essence of this kind of special chain board should be incorporated into the scope of the subject of director self-dealing in detail, again on the director self-dealing content undertook elaborating," company law" will only company and a director of direct transactions into legal regulation range, and the indirect trade excluded, and life director self-dealing is often indirect trade in the form of existence, this is not conducive to the director self-dealing norms, should the director of interested person transactions into the indirect regulation range. Finally introduced the director self-dealing time, although the vast majority of self-dealing transactions occurring in the board of tenure, but does not exclude someone can be selected in related party transaction time as before, and future related party has the self trading, or select the relationship disappeared, and the related party transactions occur not at present the reality, so the associated transaction should also regulate range.The third part is from the director self-dealing approval procedure aspects, because of procedural rules to director self-dealing regulations is crucial, is to regulate the director self-dealing is important one annulus, it will discuss director self-dealing approval procedure. Through the board of prior reports of transaction, the approval of the general meeting of shareholders, voting to avoid recognition by means of procedural norms of, to minimize the negative effect caused by the conflict of interest. Each program design are closely interlinked, indispensable. The disclosure of information, according to the completeness of the information disclosed the principle, a request for information disclosure is the quality of full and complete disclosure of information: in nature is the significant information, must make the approval authority has sufficient basis to judge whether the trading behavior of consent. Two is that the main body of the integrity, attention must be paid to related party transactions on the unity of essence and form. In actual operation, it should be a concrete analysis of concrete problems, referring to the standard, to a rational traders in similar cases should be reasonable disclosure of information disclosure. Then discusses the approval authority director self-dealing, shareholders (large) meeting and board of directors should remain as director self-dealing approval authority, and the board as the main approval authority, only in the approval of the board of directors of the circumstances can not be made by the shareholders’ meeting for approval authority for approval, and the resolution should implement related shareholders or directors the challenge system of voting power, to make the approval procedure more just to play a significant role in.The fourth part discusses the director self-dealing effectiveness, in the third part of the procedure are discussed on the basis of self trading entity on effectiveness is discussed. From contract law and corporation law two aspects of effectiveness research. But application of the contract law has very big limitation, there will be not applicable effectiveness," company law" for the determination of the validity of more reasonable, thereby identifying the associated transaction related transaction effectiveness, effectiveness of performance for two kinds of forms, void and revocable, violates the procedural rules of self potency belongs to voidable transaction, but do not meet the requirements of fair transaction is invalid.As the last part, discusses the director self-dealing legal relief mechanism, regulation as director self-dealing in the last line of defense, given the company relief rights, the rights and interests are protected. When the company for breach of director self-dealing by a party to exercise right of claim, right of revocation check, profits into request right or claim for damage compensation, and the director to fulfill the requirements, company or the shareholders may mentions to its direct action and derivative action. On I put forward some legislative suggestions.