Study On The Protection Of Creditor In Affiliated Transaction

With the development of social economy,the enterprise in the form of joint began to appear widely,between these enterprises jointly by "insider trading" to complete the integration of market resources,enhance the competitiveness of enterprises,increase the profitability of the enterprise.It is generally referred to by the academic community as affiliated enterprises,and the transactions that occur between these affiliated enterprises are referred to as affiliated transactions.Generally speaking,affiliated transactions itself is not illegal.However,as these transactions occur between affiliated enterprises,the vast majority of them will show the characteristics of concealment,freedom and formal legality.In practice,it is more and more frequent to start the use of affiliated transaction to realize the transfer of assets and avoid the improper purposes of debt,which will seriously damage the legitimate rights and interests of the external creditors.However,the creditor can not know the contents of the affiliated transaction in time,and it is difficult to prove the rationality of the related transaction,and it is also difficult to prove whether there is any improper transaction between the affiliated enterprises.If these improper affiliated transactions are allowed to be developed without restriction,the interests of creditors in the affiliated transaction can not be effectively protected.Therefore,the law should regulate these illicit related transactions in order to realize the valuepursuit of legal equity and justice.In our current company law,there are few regulations about the protection of creditor in affiliated transaction,so it is necessary to design and perfect the system of creditor protection in affiliated transaction.This paper is divided into five parts.The first part mainly introduces associated enterprises and affiliated transactions.Because our country had not legally to the associated enterprises and affiliated transactions to make a clear definition,so before we discuss creditor protection system of affiliated transaction,the author thinks that it is necessary to give associated enterprises and affiliated transactions a legal concept.Meanwhile,in order to effectively discuss the design and improvement of creditor protection system,At the same time,the author makes a brief analysis of the legal characteristics of the affiliated transaction,so as to grasp the connotation and extension of the affiliated transaction.Moreover,the author also makes a brief introduction to the disadvantages of affiliated transactions in practice.In the second part,through the interpretation of the existing provisions of the creditor protection system in the related transactions of the company law in China,it further points out the shortcomings of the existing law.These problems are mainly as follows: lack of accountability for associated enterprises,lack of internal governance system,the limitation of the voting rights challenge system,lack of related party transactions disclosure system,and obstacles to creditors' rights.The third part mainly focuses on the study and introduction of the creditor protection system in the existing affiliated transactions of foreign countries and Taiwan.Through this part of the study,on the basis of comparing the creditor protection system in the affiliated transaction of Anglo American legal system and continental law system,to explore which creditor protection system can be used for reference and absorption by our country,so as to improve the creditor protection system in the affiliated transactions in China.The fourth part is the legislative suggestion of perfecting the creditor protection system of affiliated transaction in the company law of our country,mainly from the two angles of substantive law and procedural law.In the field of substantive law,theinformation disclosure system,Integration of related company liability,Compensation system for shareholders and managers,and the creditor's right of subrogation and right of rescission,so as to construct a complete set of affiliated transactions in the system of creditor protection.At the same time,the author suggests that the equitable subordination rule should be introduced to further enrich the creditor protection system in affiliated transactions,and it can become the last line of defense for the creditor protection system.In the field of procedural law,the author suggests establishing the inversion of burden of proof.The subject of the related transaction is required to provide evidence to prove the independence of each transaction entity and the rationality of the transaction.The last part is the summary of this paper.Nowadays,the phenomenon of related party transactions is more and more common,and the amount and amount of transactions are gradually increasing.However,China's current company law lacks the protection of creditors in the related party transactions.Therefore,the abuse of control rights and the abuse of independent personality of subsidiaries are also increasing.This transfer of property and evasion of debt through improper affiliated transactions seriously infringed the legitimate rights and interests of creditors.And it is necessary to perfect the company law as soon as possible for the better protection of the interests of creditors in linked transactions.Finally,I hope that the suggestions put forward by the author can provide positive help to improve the creditor protection system of affiliated transactions in the company law of our country in the future.