In the people's court's trial of cases involving related party transactions, due to the blank legislation in the past, the trial is difficult and there are many blind spots in the implementation, which need further exploration. Among them, how to prove that related party transactions are illegal is the starting point and key to hearing related party transactions cases. Article 2 1 of the revised Company Law clearly stipulates: "The controlling shareholder, actual controller, directors, supervisors and senior managers of the company shall not use their relationships to harm the interests of the company." This provision establishes the legal basis and principles for regulating related party transactions, and outlines the boundaries between legal related party transactions and illegal related party transactions. In other words, "damaging the company's interests" is the fundamental standard of illegal related party transactions: if it is a legal use of related party transactions, it does not harm the company's interests and create wealth for the company, it is a legal related party transaction; If an improper relationship is used to harm the interests of the company, it is an illegal related party transaction. In practice, illegal related party transactions not only harm the interests of the company, but also harm the interests of minority shareholders and creditors of the company, which also belongs to the category of illegal related party transactions. In judicial practice, whether related party transactions are legal can be judged according to the following aspects: 1, whether related party transactions violate the procedural requirements stipulated by law. Procedural requirements are legal requirements in the process of related party transactions. In order to limit the illegal activities in related party transactions, all countries have stipulated the procedural conditions in the process of related party transactions, that is, the disclosure and approval system of related party transactions. The information disclosure system of related party transactions means that in the process of forming the related relationship between companies, the related company should make an announcement to the related company, so that the latter can understand the changes in the company's share holdings. Although adequate information disclosure is the key to ensure the fairness and justice of related party transactions, there is no necessary legal connection between disclosure and fairness and justice of related party transactions in essence, that is to say, even if the disclosure obligation of related party transactions is not fulfilled, it does not necessarily lead to the invalidity of related party transactions. The examination and approval system of related party transactions is different from the disclosure system. The company laws of all countries stipulate the approval of related party transactions, that is, the related party transactions of the company need special approval, especially the approval of the company's shareholders' meeting and board of directors, which can be carried out and have legal effect, otherwise it will be invalid. 2. Whether related party transactions violate the provisions of laws and administrative regulations. If the related party transaction itself violates the prohibition or mandatory provisions of laws and administrative regulations, it is obviously illegal. If the directors and senior managers of the company violate the provisions of the articles of association or enter into contracts or conduct transactions with the company without the consent of the shareholders' meeting or general meeting, it is obviously in violation of the provisions of the Company Law. What's more obvious is that, for example, drug trading between affiliated companies is illegal or even criminal under any circumstances. 3. Whether the trading motive is malicious. Motivation is the idea of pushing people to engage in certain behaviors. Thought is an ideological thing, although it is not easy to grasp, but it can be judged according to the behavior of those concerned. This is actually the standard of judging goodwill and malice in civil law. Related party transactions actually involve the interests of related parties, and it is inevitable that related parties violate their trading obligations when trading. In judicial practice, the legitimacy of related party transactions should be judged according to whether the trading purpose embodied in the trading behavior of related party traders is legitimate and whether the trading motives are malicious, such as manipulating the market, transferring profits or property, making false statements, evading taxes, etc. 4. Whether the related party transaction itself violates the Convention. The so-called violation of conventional transactions means that according to commercial trading habits, the trading conditions are obviously inappropriate. Irregular transactions are often manifested as predatory transactions. The common type is the sale, transfer or transaction price of goods, services or stocks and assets between affiliated companies, which is obviously lower than the normal and reasonable price in the international or domestic market; Interest-free mutual financing between affiliated companies; Providing guarantee in violation of the articles of association; Loans between affiliated companies charge interest, and the interest rate is much lower than the financing cost. The main question is, how to determine whether trading behavior belongs to unconventional trading behavior? This is really hard to judge. "In this regard, the laws of Delaware are the clearest. It stipulates that the court shall evaluate the shares and determine their fair price. " "In other words, the valuation gives all investors a reserve price." "This' reserve price' clause implements the Pareto principle of welfare economics: by ensuring that neither party will worsen its situation because of the transaction of corporate control, the value of the transaction will be enhanced." In judicial practice, how to evaluate the transaction price and what procedures need to be performed. If there is no fair and scientific evaluation mechanism, the parties to the transaction will decide on their own to evaluate the results they need, which will inevitably harm the interests of the company and creditors. To this end, the people's court should refer to the market trading practices and the expert opinions of professional institutions such as auditing and evaluation. In terms of whether the related party transaction itself violates the convention, we should also pay attention to judging whether the transaction behavior of related party traders brings real or obviously possible losses to the company according to the transaction structure. Especially the obvious possible losses need special attention. To run a company, it is very important to understand the definition of related party transactions in company law. Because the definition of related party transactions in company law is not clear, it will cause the imbalance of company power and seriously harm the interests of shareholders and others. If this is the same, it will not only easily lead to disputes, but also easily affect the development of the company.
Legal objectivity:
Article 83 of the Civil Law of People's Republic of China (PRC) stipulates that the investor of a profit-making legal person shall not abuse the rights of the investor to harm the interests of the legal person or other investors; Whoever abuses the rights of investors and causes losses to legal persons or other investors shall bear civil liability according to law. The investor of a profit-making legal person shall not abuse the independent status of the legal person and the limited liability of the investor to harm the interests of the creditors of the legal person; Whoever abuses the independent status of a legal person and the limited liability of the investor, evades debts, and seriously damages the interests of the creditors of the legal person, shall be jointly and severally liable for the debts of the legal person. Article 84 of the Civil Code of People's Republic of China (PRC) * * * The controlling investors, actual controllers, directors, supervisors and senior managers of profit-making legal persons shall not use their relationships to harm the interests of legal persons; If losses are caused to the legal person by using the related relationship, it shall be liable for compensation.