The Substantive Judgement Criteria Of The Controlling Shareholder's Abuse Of The Relationship

How to limit the abuse of control by controlling shareholders is an important task of the company law legislation and justice.In the related party transactions,the controlling shareholder often abuses the control right and violates the fiduciary duty of fair trade.Although China has already established a relatively complete procedural judgment standard on controlling shareholders' improper association transaction control rules,it has not yet solved the problem of identifying the substantive fairness of illegitimate connected transactions.The controlling shareholder and the company conduct related party transactions.Although they have fulfilled the relevant procedures and passed the decision of the board of directors and even the shareholders' meeting,they may also constitute the abuse of the relationship by the controlling shareholder because of unfairness.The question is how to make a substantive judgment on this type of connected transaction.In order to solve this problem,we will thoroughly study the theoretical research and judicial practice status of related transactions in various countries and regions of the world,and then combine the legislative provisions and legal interpretation theory with the current legal provisions of China to construct a substantive judgment standard for the controlling shareholders to abuse the relationship.It is especially important to guide our country's judicial practice.The text is mainly divided into the following three parts:The first part:The reasons for the introduction of substantive judgment criteria in the abuse of the relationship between the controlling shareholder.On the one hand,the company's independent operation can not effectively guarantee the fairness of related transactions,on the other hand,it can not effectively and independently guarantee the fairness of related transactions based solely on the program judgment criteria.Therefore,in the revision and improvement of the company law in the future,we should consider introducing substantive judgment criteria for the controlling shareholder's improper related party transaction control rules.The second part:the choice of the controlling shareholder's abuse of the substantive judgment criteria of the relationship.First of all,the fairness judgment of the result of the connected transaction of the controlling shareholder should be established.In the process ofjudging the fairness of the outcome of the related party transaction,it is necessary to analyze whether the result of the related party transaction is fair by the case of meeting the reasonable expectation of other shareholders and maintaining the principle of balance of interests..Then,based on the neutrality of the connected transaction itself,the economic value of the connected transaction to the affiliated company and the fact that the controlling shareholder actually abuses the connected relationship are not necessarily legally regulated.Modest.Finally,when applying substantive judgment criteria to the controlling shareholders' abuse of the relationship,they should pay attention to the differences they have in different situations.Due to the abuse of the relationship between the controlling shareholder and the director,the abuse of the relationship and the abuse of voting rights,the positions of different countries in the same country and different countries in the same era have different positions on the application of substantive judgment standards.Therefore,the position when the substantive judgment standard is applied should not be confused.The third part:The controlling shareholder abuses the content of the substantive judgment criteria of the connected relationship.In the specific examination of the controlling shareholder's improper related party transactions,the first should examine the relevance of the related party,analyze the relationship between the controlling shareholder and the company's business,and consider the free exercise of the controlling shareholder and the company's private law rights.Attributes.Second,the legitimacy of the purpose of the connected transaction should be examined,whether there is a substantial competitive relationship between the controlling shareholder and the company's main business,and whether the subjective psychological state of the controlling shareholder is malicious;thirdly,the necessary analysis of the related party transaction should be analyzed.On the one hand,it is necessary to determine whether the company has an expected interest in this related transaction,and on the other hand,it is necessary to analyze whether the related party transaction is required for the normal production and operation of the company;fourth,it should judge the rationality of the price of the related transaction and need to be based on the association.Whether the subject matter of the transaction belongs to the standardized commodity and whether the related party market is selective,respectively applies the open market transaction price standard and the professional audit institution evaluation standard.