《公司法》关联交易规制理念纠偏与规则重构

Correction of the Regulatory Concepts of Related Party Transactions and Reconstruction of the Rules in the Company Law

《公司法》以第21条为中心的关联交易规范面临制度困境,实践中无法有效规制因关联交易而引发的控股股东与小股东以及公司与管理层之间利益冲突等公司治理问题,亟待公司法修订时对其规制理念与规制工具予以体系性完善。在规制理念上,一方面小股东以及债权人利益保护应纳入我国公司法关联交易规范的直接保护范畴;另一方面引入关联交易“一体化”规制理念,克服现行法“碎片化”规制路径的弊端。在规则重构上,将《公司法》第21条从侵权责任条款改造为直接界定关联方、交易、公允性判断规则及其举证责任规则等构成要件的一般性条款,同时引入关联交易的法定豁免情形,以期实现权益保障与经济效率的平衡。此外,结合我国《公司法》框架下不同类型公司治理的特殊性,关联交易的批准规则和披露规则作为规制工具亦应进行本土化再造。

The related party transactions(RPTs) regulations centered on Article 21 of the Company Law faces an institutional dilemma. In practice, they can not effectively regulate corporate governance issues such as conflicts of interests between controlling shareholders and minority shareholders, as well as the company and the members of management caused by RPTs. In the new revision of the Company Law, its regulatory concepts and regulatory tools need to be systematically improved. Regarding the regulatory concept, on the one hand, the protection of the interests of minority shareholders and creditors should be included as directly protected rights and interests of the RPTs regulations. On the other hand, the approach of “integrated” regulation of related-party transactions should be introduced to overcome the shortcomings of the current fragmentary regulatory approach. Regarding the reform of regulatory rules, Article 21 of the Company Law shall be transformed from a tort liability clause to a general clause of RPTs that directly defines the constituent elements, including related parties, transactions, fairness judgment rules and the burden of proof rules, and at the same time introduces statutory exemptions for RPTs for certain circumstances, to achieve a balance between legal protection and economic efficiency. In addition, considering the particularities of different models of corporate governance under Chinese Company Law, the approval rules and disclosure rules of RPTs as regulatory tools should also be re-localized.