论我国上市公司关联交易私人执法规则之完善

On the Improvement of Private Enforcement Rules for Connected Transactions of Listed Companies in China

相较于非上市公司,上市公司关联交易的风险更大,我国上市公司集中的股权结构也更容易导致非公允性关联交易的发生。在非上市公司关联交易的规制中起到重要作用的私人执法规则对于上市公司关联交易的影响微乎其微,因此,有必要理顺上市公司关联交易的私人执法规则,使其发挥应有的作用。上市公司关联交易的私人执法规则不仅包括《公司法》中的损害赔偿请求权制度、归入权制度、关联交易合同效力制度、司法审查制度,同时还应结合证券相关法规中针对上市公司关联交易的各种规定进行适用,其中包括关联交易的界定、信息披露和审议程序以及特殊的诉讼制度。

Compared with unlisted companies,the risk of connected transactions of listed companies is greater,and the concentrated shareholding structure of listed companies in China is more likely to lead to non-fair connected transactions.The private enforcement rules that play an important role in the regulation of connected transactions of nonlisted companies have little impact on connected transactions of listed companies.Therefore,it is necessary to rationalize the private enforcement rules of connected transactions of listed companies to make them play their proper role.The private enforcement rules for connected transactions of listed companies include not only the system of the right to claim damages in the Company Law,the system of the right of imputation,the system of contractual validity of connected transactions,and the system of judicial review.It should also be applied in conjunction with the various provisions of securities-related regulations for connected transactions of listed companies,which include the definition of connected transactions,information disclosure and deliberation procedures,and special litigation systems.