Legal Regulation Of Enterpise Group Interior Common Intrests Affiliate Trannsaction

According to the different objectives and forms of the related parties,the related transactions can be divided into two basic types of interest consistency and conflict of interest.Interest coincide,that is,interest assimilation,can be divided into two situations:one is subordinate company to gain greater interests,to transfer their interests to related persons,so as to maximize the overall interests.The other is a harmless,even beneficial association transaction.In terms of motivation and results,these two relationships are not marketable,although it is an economic phenomenon that is in line with the law of market development.One view is that the convergent related transaction brings great risk to stakeholders.From the point of view of motivation,the alienation behavior of a subsidiary company may encroach on the interests of creditors and minority shareholders.Therefore,it is necessary to define the interest assimilation related transactions,and then standardize the market order and protect the interests of the creditors.There are two core problems in the related related transaction of interest,one is the responsibility system,and the two is the protection of the creditor.From the perspective of the generalized company law,China has initially established a related transaction legal system concerning the interests assimilation.However,the system still has some shortcomings.The relevant provisions of the company law are simple and abstract,not typed,and the provisions in the accounting standards are scattered.There are two problems in the system of personality denial.One is that there is no distinction between the forms of joint and several liability,and the two is that the standard of identification of personality confusion is too vague.In order to gain the overall interests of the group,it is unfair to control the company to transfer some of the benefits to the company,from the point of view of the creditor's interests.In order to regulate the internal behavior of the group and break the relativity of the contract,it is necessary to introduce the creditor's right of rescission,but at present,the contract law has no interest to assimilate the related provisions of the related transaction creditors.One view is that the applicable provisions of the company law can reduce the cost of legislation.Through the introduction of the "company law"rules,and the "contract law" to form a docking,strengthen the regulation of the internal behavior of the group.It is the common understanding of the legislation of various countries that the examination of the relation of relations pays attention to the substance rather than the form.The US law around the elements of behavior,develops a special way of catching up when the interests of parent subsidiary companies are assimilated.For example,the theory of single commercial body advocates the review of illegitimate control,and it can bypass behavior elements and identify personality confusion.The maximum of German law from the interests of the company to the process of development,the benefit compensation mechanism for control of the company to the subordinate company,the protection of minority shareholders and creditors,such as"no interest compensation system".These two systems have a common defect,namely the interests of assimilation of a simple understanding of different degree,mode of fusion regulation in Taiwan absorbs the advantages of no system deny interest compensation system and personality,creditor protection system is relatively mature,the higher and the company law of our country the process of reference.There are four suggestions to regulate the assimilation of related transactions.The first is to set up a comprehensive review standard for damage and interest deduction,to flexibly judge the relationship between interest transmission and interest increase and to regulate the unfair actions that cover the interests and short-term interests to accomplish long-term damage,and protect the interests of minority shareholders.The two is to improve the personality system,distinguish the joint liability form,and the personality confusion situation to do further research,develop two kinds of puncture situations require a behavior element and does not need to act,in order to improve the convergence of interest related transactions under the veil piercing rules to protect the interests of creditors of the company subordinate.The three is to establish the interests of the company law,assimilate the quasi terms of related transactions,achieve the docking between the company law and the contract law,and strengthen the overall regulation of the related transactions of interest convergence.Four is the establishment of cooperative regulation of"contract law" and "bankruptcy law" is the system guarantee of creditor protection measures,establish the interests of creditors of the assimilation of related transactions,and the introduction of equity on the basis of this principle,the perfect credit allocation of benefits associated with the company,the assimilation of the best legal regulation of related party transactions.