Research On Legal Regulation Of Related Transactions Of Non-public Companies

On May 20,2017,the European Union promulgated the "Organization of the European Parliament and the Council of the European Union to promote the long-term participation of shareholders to amend the European Community Directive 2007/36"(hereinafter referred to as EU Directive No.2017/828).The new Article 9c of the Directive regulates the relationship from the perspective of internal approval procedures and information disclosure,and has a positive impact on the legislation of all countries in the world.Due to the characteristics of non-public companies,such as humanity,seizure,separation of ownership and control,low cost of governance,and small scale,the direct application of the public company's related party transaction regulation model will inevitably lead to the applicability of the system.Therefore,this paper intends to learn advanced extraterritorial experience at the time of the promulgation of the EU Directive 2017/828,trying to find a related transaction regulation strategy suitable for non-public companies.This article has a total of five chapters,the specific content is as follows:The first chapter mainly explains the theoretical premise of the non-public company related party transaction regulation,which mainly includes the inapplicability of the current related party transaction system to non-public companies,the non-public company related party transactions and the particularity of its regulation methods.The second chapter mainly analyzes the status quo and problems of the non-public company related party transactions in China from the perspective of system and judicial practice.At the institutional level,the legal provisions are general and lack of discriminatory provisions on market entities.At the judicial practice level,the courts mainly determine the fairness of transactions to determine whether the transaction is fair.However,in practice,China's current procedural fairness and substantive fairness judgment rules are confusing,and the lack of system is serious.Chapters 3 and 4 specifically analyze the above issues.Chapter 3 mainly refutes the traditional approval system,avoidance system and information disclosure system of non-public companies from the perspective of procedural fairness,points out the inapplicability of reality,and draws on the latest legislative experience of the EU to confirm the “shareholder meeting” as the approval subject and propose Specific transaction exemption system.The fourth chapter mainly analyzes the fairness standards of related transactions from the perspective of entity fairness,which mainly includes the improvement of the loyalty obligation standard and the application of the fairness judgment standard.The author attempts to absorb advanced foreign legislative experience and conduct reasonable legal transplants of “business judgment rules”,“objective fairness standards”,“complete fairness standards”,“reasonable expectation standards”,and “interests of interest”.Based on the previous chapters,Chapter 5 explores the perfect path of non-public company related party transactions under China's national conditions,and gives specific suggestions for improvement at the program and entity level in combination with the previous discussion.